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COMPILED CODE 



OF 

SOUTH CAROUNA 

1930 

Submitted by the Code Commissioner Pursuant to the Constitu- 
tion and Statutes of South Carolina for the Consideration of 
the General Assembly of 1 93 1 and for Adoption by the 
General Assembly of 1932 as the Official Code of 

South Carolina 

FURMAN R. GRESSETTE 
Code Commissioner 

WILLIAM H. WICKER ,. 

Code Editor 

VOLUME I 

CODE OF CIVIL PROCEDURE 

CODE OF CRIMINAL PROCEDURE 

CRIMINAL CODE 

CONSTITUTIONS OF THE UNITED STATES AND 

OF SOUTH CAROLINA 

AND 

RULES OF STATE COURTS 

47059 

PRINTED UNDER THE DIRECTION OF THE 

JOINT COMMITTEE ON PRINTING 
GENERAL ASSEMBLY OF SOUTH CAROLINA 



\/ 



REPORT OF THE CODE COMMISSIONER 



To the General Assembly of the State of South Carolina: 

Pursuant to the requirements of law, I herewith submit to you as my report, 
a compiled Code purporting to contain all the statutory law of a general and 
permanent nature in force in South Carolina on December 31, 1930. 

The General Assembly of 1930 adjourned without making any provision for 
the preparation of this compilation, and immediately thereafter I had a con- 
ference with Hon. John F. Williams, Chairman of the Judiciary Committee of 
the Senate, Hon. J. E. Harley, Chairman of the Judiciary Committee of the 
House, and Hon. William S. Nelson, President of the State Bar Association, to 
determine the manner and means of getting out this compilation. After having 
had several conferences with the above mentioned gentlemen, who freely gave 
their counsel and time, I, with their advice and consent, took the matter up with 
the Civil Contingent Committee relative to obtaining some funds for certain 
expenses necessary to get out this compilation. It was our opinion that all ex- 
penses which could, should be carried over for payment by the Legislature in 
1931, and only such expenses as had to be taken care of should be satisfied 
before the assembling of your body in 1931 ; therefore, a request was made to the 
Civil Contingent Committee for such expenses as were deemed necessary and 
essential. The amount allow^ed by this Committee proved insufficient to pay 
current expenses. 

Before the actual compilation and assembling of the mass of material was 
instituted properly, a letter was sent to every member of the bench and bar of 
this State and to the several State departments and institutions requesting a 
report of any errors, anomalies, duplicates, et cetera, which were in the 1922 
Code and which should be corrected, to be sent to the undersigned; and also 
any suggestions which they might have in regard to the compilation of this 
report. As a result of sending these letters, some correctable errors were reported 
and in these cases the corrections have been duly made. 

I was very fortunate in obtaining the services of William H. Wicker as Code 
Editor. Mr. Wicker has had wide legal editorial experiences and has the required 
industry and capacity for doing work of this type. No man could have worked 
harder for an entire summer than he did on this compilation. 

Every member of the bench and bar will agree that the new Code must be 
exhaustively annotated with the decisions of our Courts construing the various 
sections appearing therein. Many of these sections can be understood only in 
the light of the interpretation which our Supreme Court has given to them. These 
sections mean what our Courts have held that they mean. The amount of edi- 
torial work which has been done on this compilation is small as compared with 
what must be done in order to properly annotate it. You are respectfully re- 
quested to appropriate an adequate sum for the doing of this work in order that 
all users of the Code may have an adequate tool for administering justice accord- 
ing to law. 

The Constitution of South Carolina requires this compilation to remain on 
your desk for a period of one year before being enacted as the official Code of 
the State. The obvious purpose of this requirement involving a large printing 
bill and a delay of a year, was to give ample opportunity for examination by a 
large number of persons in order to eliminate errors which, in a compilation of 



this magnitude, will inevitably creep in despite the utmost care to prevent this. 
This laudable purpose will largely fail unless every person receiving a copy of 
this compilation will examine it carefully as to every part in which he is par- 
ticularly interested. The Code Commissioner earnestly requests of you to make 
such an examination and report to him every discrepancy or apparent dis- 
crepancy observed in order that South Carolina may have a better Code than 
would otherwise be possible. The common complaint that previous compilations 
submitted to the Legislature for enactment as the official Code could not be 
adequately checked because of the absence of a comprehensive index has been 
remedied by such an index, prepared by Mr. Wicker and submitted herewith. 

The checking of the sections in this compilation, the Acts from 1922 through 
1930, historical references, tables, renumbering of sections, page proof, et cetera, 
has been done by the Code Commissioner and his clerical assistant. Miss Ida 
Yelman. I wish to acknowledge the service and assistance of Mr. W. T. Walker, 
Secretary of the Joint Committee on Printing, whose advice and suggestions 
aided in the determination of the style and makeup of this compilation. I wish 
also to acknowledge the able assistance rendered by Mr. C. S. Bowen in preparing 
the lists of unconstitutional and obsolete sections in the 1922 Code and the Acts 
from 1922 through 1930, which lists were checked and rechecked by the Code 
Editor and the Code Commissioner ; and who also proof read this compilation 
in its final stage. 

All sections of the 1922 Code which were omitted from this compilation as 
obsolete and having no influence on existing rights and remedies, are indicated 
in the tables of corresponding sections at the end of the last volume of this 
compilation. Likewise all sections of the Code of 1922 which were omitted as 
unconstitutional are so indicated by a citation of the case in which that decision 
was reached. These tables show not only the sections in the present compilation 
corresponding with the sections in the 1922 Code, but also the disposition which 
was made of every section of the 1922 Code which does not appear in this com- 
pilation. Considerable material was collected for the preparation of a table 
showing the disposition of every Act in the Sessions Laws from 1922 to 1930, 
inclusive, but there was neither the time nor the money available for the com- 
pletion of such a table. 

Considerable space was saved in this compilation by omitting the Federal 
Court Rules and the State Constitution of 1868. In the 1922 Code the Federal 
Court Rules occupied two-thirds as much space as the Criminal Code. Eliminat- 
ing these rules made it possible to add the Criminal Code to Volume 1, following 
the Code of Criminal Procedure, without making this volume cumbersome in 
size. Other objections to including these rules in the present compilation were 
that most of them have recently been in the process of reformulation and it was 
impossible to secure the new rules in time for publication herein. Furthermore, 
obviously no State agency has any power to modif}^ these rules. Hence the reasons 
for allowing this compilation to age one year before it can be adopted has no 
application to these rules. The State Constitution of 1868 was expressly re- 
pealed by the State Constitution of 1895, Art. 17, § 11. It was thought that 
inserting the Constitution of 1868 herein and indexing it in a general index, 
would tend to obscure this all-important fact. 

In compliance with requests made by a number of lawyers, a considerable 
mass of material excluded from the Code of 1922 as being local legislation has 
been included in the present Code. The two most notable examples of this are 
the appointment, powers, duties, jurisdiction and location of magistrates and 
rural policemen. As applied to most of the counties this material has been com- 
pletely revised and reenacted within the past nine years and will be found com- 



plete in the present compilation. But as no material was taken from the Acts 
prior to 1922, the material on these two topics is either entirely absent or very 
fragmentary as applied to a few counties. It is suggested that each county 
delegation examine this compilation on these two subjects and if they find it in- 
complete, reenaet such additional legislation as will eliminate the necessity of 
examining the Acts prior to 1922 on these subjects. 

After some hesitation a large number of Acts relating to the election of school 
trustees in particular counties were included. On first blush it would seem that 
these Acts are local legislation, but our Supreme Court in State v. Meares, 148 
S. C, 118, 145 S. E., 695, held that certain Acts passed between 1912 and 1922, 
relating to the election of school trustees in particular counties, were repealed by 
the failure to include them in the Code of 1922. In view of this decision, it was 
deemed expedient to include all Acts relating to the election of school trustees 
in the present compilation. 

Respectfully submitted, 

FURMAN R. GrESSETTE, 

Code Commissioner. 
January 12, 1931. 
St. Matthews, S. C. 



EDITOR'S INTRODUCTION 



After practically all the law book companies with editorial staffs, had indi- 
cated that they were not interested in doing the editorial work for this compila- 
tion, the present Code Editor agreed to cooperate with the Code Commissioner 
in the preparation of this compilation. The work was begun early in June, 1930, 
and continued until January, much more rapidly at times than was desirable, 
but the time limit was fixed by the State Constitution and the work had to be 
done accordingly. 

The Code of Laws of 1922 and the Acts for the years 1922 to 1930, inclusive, 
are the materials out of which the present compilation was made. The statutory 
law gathered from these sources embraced approximately 12,000 pages. A con- 
siderable portion of this mass of legislation consisted of repealing sections, re- 
pealed sections and amendatory sections. This portion has been culled out and 
eliminated by carrying out the legislative directions contained therein. Another 
considerable portion consists of Acts and parts of Acts excluded as local or 
temporary legislation. The remaining portion is embodied in these volumes and 
consists of all statutes of a general and permanent nature in force on December 
31, 1930. 

The editorial work consisting of placement, arrangement, compilation, cum- 
mulation, renumbering, indexing and preparing historical references and tables 
has been done in the first instance by the Code Editor and his clerical assist- 
ants, Ruth Wooten and Francella Turner. The equally important and time-con- 
suming task of checking and rechecking every Act and every section, has been 
done by the Code Commissioner and his staff of workers. The Code Commissioner 
has been an indefatigable worker and has shown commendable zeal in the per- 
formance of his part of the work. His checking has resulted in the elimination 
of a considerable number of clerical, typographical and editorial errors of the 
type which one would reasonably expect to occur in a compilation of this mag- 
nitude. Weekly conferences were had between the Code Commissioner and the 
Code Editor and all problems discussed were decided to the mutual satisfaction 
of both. 

The difficulty of making this compilation was greatly enhanced by the com- 
mon practice of making amendments to the earlier statutory law without any 
specific reference to the section or sections amended. Not infrequently the effect 
of a new Act was to make a minor amendment to a section already in the Code 
or the earlier Acts and yet the new Act was drafted as an independent Act 
without specific reference to the earlier statutory law covering the same subject- 
matter and without regard to the proper placement of the new Act in the next 
compilation. 

It is both a pleasure and a duty to acknowledge the valuable assistance ren- 
dered to the Code Editor by his friend, B. D. Hodges, Esq. Mr. Hodges per- 
formed the difficult task of separating the local and temporary Acts and parts 
of Acts from the legislation to be embodied in the Code. Every selection made 
by Mr. Hodges has been included herein. The Code Commissioner examined 
every Act excluded by Mr. Hodges and as a result of his examination a con- 
siderable number of additional Acts were added to the Code. It is the belief of 
the Code Editor that no two competent men will make independently exactly 



the same selections for exclusion from the Code upon reading the Acts of any 
one session of the Legislature. His attitude has been one of including all Acts 
or parts of Acts as to which reasonable men have disagreed on the question of 
inclusion or exclusion. 

The entire manuscript was read and checked against the galley proof by 
Messrs. J. D. McGinnis, H. R. Swink, F. C. Roberts, D. J. Jones and J. B. Gib- 
son. It was tken completely reread and checked against the page proof by the 
Code Commissioner and his staff. The Code Editor's work in this respect was 
limited to answering queries submitted to him by the proof readers. 

Assistance in the compilation and checking of the tax laws and the highway 
laws was rendered by the State Tax Commission and the State Highway De- 
partment. 

No extensive scheme of reclassification was attempted but a considerable 
amount of rearrangement has been done, especially in the latter half of the 
Civil Code. The attempts of former Code Commissioners to place all Criminal 
Sections in the Criminal Code has been abandoned. If the predominating por- 
tion of a single Act was civil in its nature, the entire Act was placed in the 
Civil Code and vice versa. The former practice of separating portions of a single 
Act by placing them in different Codes and duplicating sections in different 
Codes had the tendency of making the isolated section less intelligible and in 
some cases caused much confusion. Thus not infrequently the portion of an 
Act placed in the Civil Code was expressly repealed or amended and in such a 
case usually nothing was said in the repealing or amendatory Act regarding 
the effect of this Act on the companion or duplicate section in the Criminal 
Code. It is believed that a single general index eliminates most of the objections, 
to the placement of all sections of a single Act together and certainly this method 
of placement is more conducive to intelligibility of context. The Code Editor 
assumes full responsibility for the preparation of the index for the present com- 
pilation. 

Several hundred manifest clerical errors in the Code of 1922 and subsequent 
Acts have been corrected. In every case where an ocular inspection indicated 
a probable clerical error, the earlier sources of that particular line were examined 
and if this examination showed that the error was not in the original Act passed 
by the General Assembly, the error was corrected. Errors made by the Engrossing 
Department and contained in the original Act where it first became law, were 
allowed to remain in the Code. It is not believed that any changes in the statu- 
tory law of South Carolina will be made by the enactment of this compilation 
as the official Code. 

This compilation purports to contain all the South Carolina statutory law of 
a general and permanent nature in force on December 31, 1930. But no claim 
is made that every provision in this compilation is of a general and permanent 
nature. In determining the question of inclusion or exclusion of a particular 
Act, various factors were considered ; such as, certain decisions of our Supreme 
Court, the content of the 1922 Code, the convenience of attorneys and other 
users of the Code, the fact that the official Code is the only general compilation 
of the State statutes, whether they are statewide in their application or apply 
only to a designated county or counties ; and the fact that a mistake in excluding 
a particular Act has more serious consequences than a mistake in including a 
particular Act. This last factor in particular often causes one to hesitate to 
insist on his own convictions whenever a sharp difference of opinion arises. 

It is hoped that the innovations made in the present compilation will meet 
with general approval. A partial list of these innovations follows : The analysis 



of .sections at the beginning of each chapter and article, page numbers running 
consecutively from the first page of Volume one to the end of the last volume, 
section numbers at the top of each page, all volumes substantially uniform as to 
size, a table of corresponding sections showing not only the sections herein corres- 
ponding with the sections in the 1922 Code but also the disposition of the sections 
therein not appearing herein and a single, general index in a separate volume. 

William H. "Wicker, 

Code Editor. 
Columbia, S. C. 
January 8, 1931. 



Contents of Volume I 



Page 

CODE OF CIVIL PROCEDURE 1 

CODE OF CRIMINAL PROCEDURE 243 

CRIMINAL CODE 293 

CONSTITUTIONS 

The Constitution of the United States of America 559 

The Constitution of the State of South Carolina 579 

COURT RULES 

The Rules of the Supreme Court of South Carolina 659 

The Rules of Practice for the Circuit Courts of South Carolina. . 673 

The Rules of Practice for the Courts of Probate of South Caro- 
lina 692 



TABLE OF CONTENTS 



CODE OF CIVIL PROCEDURE 



TITLE 1 
Definitions and Preliminary Matter 



Section 
1 



PART 1 
COURTS OF JUSTICE AND THEIR JURISDICTION 

TITLE 1 

Designation of Courts of Justice 9 

TITLE 2 

Courts and Judicial Officers 11 

Chapter 1. — The Supreme Court 11 

Article 1. The Supreme Court and its Officers 11 

Article 2. The Supreme Court and its Jurisdiction 26 

Chapter 2. — The Circuit Courts 33 

Article 1. Circuits and Judges 33 

Article 2. Circuits and Terms of Court 50 

Chapter 3. — County Courts 75 

Article 1 . General Provisions 75 

Article 2. Civil Court of Florence 102 

Article 3. County Court of Greenville 117 

Article U. County Court of Orangeburg 141 

Article 5. County Court of Richland 164 

Chapter 4. — The Probate Courts 182 

Chapter 5. — The Courts of Magistrates 234 

Chapter 6. — Civil and Criminal Court of Sumter 253 

Chapter 7. — Civil and Criminal Court of Charleston 268 

Chapter 8. — The City Court and the Police Court of Charleston 281 

Chapter 9. — Attorneys, Solicitors and Counselors 304 

Chapter 10. — General Provisions Respecting the Administration of Justice 326 



PART 2 
CIVIL ACTIONS 

TITLE 1 
General Provisions 344 

TITLE 2 

Time of Commencing Civil Actions 348 

Chapter 1. — General Provisions 348 



Section 

Chapter 2. — ^Actions for the Recovery of Eeal Property 363 

Chapter 3. — ^Actions Other than for Eecovery of Realty 378 

TITLE 3 

Parties to CrvTL Actions 389 

Chapter 1. — Parties to Civil Action Generally 389 

Chapter 2. — Wrongful Death Actions and Survival of Actions 402 

TITLE 4 

Place of Trial of Civil Actions 412 

TITLE 5 

Manner of Commencing Civil Actions 419 

Chapter 1. — Summons and Service 419 

Chapter 2. — Notices, Filing and Service of Papers 434 

TITLE 6 

Pleadings in Civil Actions 445 

Chapter 1. — The Complaint 445 

Chapter 2. — The Demurrer 448 

Chapter 3. — The Answer 458 

CH-APTER 4.— The Reply 462 

Chapter 5. — General Rules of Pleading 465 

Chapter 6. — Amendments and Relief in Case of Mistake 481 

TITLE 7 

Pro\"isional Remedies in Civtl Action 490 

Chapter 1. — Arrest and Bail 490 

Chapter 2. — ^Attachment 518 

Chapter 3. — Claim and Delivery 543 

Chapter 4. — Injunction 556 

Article 1. General Provisions 556 

Article 2. Injunction to Abate Certain Nuisances 566 

Chapter 5. — Receivership and Other Provisional Remedies 575 

TITLE 8 

Trlal and Judgment in Civil Actions 576 

Chapter 1. — Judgment by Default or upon Frivolous Pleading 576 

Ch.apter 2. — Issues and Slode of Trial 579 

Chapter 3.— Trial by Jury 590 

Article 1. General and Special Verdicts 590 

Article 2. Drawing and Summoning Jurors 598 

Article 3. Qualification, Exemption, Empaneling and Pay of Jurors 618 

Article U- Objection to Jurors 628 

Airticle 5. Miscellaneous Provisions 634 

' Chapter 4. — Trial by the Court 639 

Chapter 5. — Trial by Referees 643 

Chapter 6. — Judgments 648 

TITLE 9 

Witnesses ant) E^^DENCE 656 

Chapter 1. — Offer to Compromise 656 



Section 

Chapter 2. — Agreed Case 659 

Chapter 3. — Confession of Judgment 661 

Chapter 4. — Admission or Inspection of Writings 664 

Chapter 5. — Examination of Parties 665 

Chapter 6. — Attendance of Witnesses 674 

Chapter 7. — Examination of Witnesses 682 

Article 1. General Provisions 682 

Article 2. Examination by Commission 684 

Article 3. Examination before Clerk and Depositions De Be-ne Esse 694 

Chapter 8. — Provisions Respecting Methods of Proof 700 

TITLE 10 

Executions and Proceedings Supplementary to Execution 728 

Chapter 1. — Executions 728 

Chapter 2. — Proceedings Supplementary to Executions 738 

TITLE 11 

Costs in Civil Actions 748 

TITLE 12 

Appeals in Civil Actions 763 

Chapter 1. — Appeals in General 763 

Chapter 2. — Appeals to the Supreme Court 772 

Chapter 3. — Appeals to the Circuit Court from an Inferior Court 786 

TITLE 13 

Miscellaneous Provisions Respecting Civil Actions 802 

Chapter 1. — Proceedings Against Joint-Debtors 802 

Chapter 2. — Motions and Orders 808 

Chapter 3. — Computation of Time 813 

Chapter 4. — Miscellaneous Provisions 815 

TITLE 14 

Actions in Particular Cases and Extraordinary Remedies 818 

Chapter 1, — ^Actions Against Foreign Corporations 818 

Chapter 2. — Substitutes for Scire Facias, Quo Warranto, and of Informations 

in the Nature of Quo Warranto 819 

Chapter 3.— The Writ of Mandamus 839 

TITLE 15 

Proceedings for Relief of Persons Arrested in Civil Actions 843 

TITLE 16 

Remedies Relating to Real Property 862 

Chapter 1. — Remedies Against Guardians, Disseizors, etc 862 

Chapter 2. — Forcible Entry and Detainer and Ejectment of Trespassers 877 

Article 1. Forcible Entry and Detainer 877 

Article 2. Summary Ejectment of Trespassers 886 

TITLE 17 

Definitions and General Principles 889 



CODE OF CRIMINAL PROCEDURE 



Chapter 


1.- 


Chapter 


2.- 


Chapter 


3.- 


Chapter 


4.- 


Chapter 


5.- 


Chapter 


6.- 


Chapter 


7.- 


Chapter 


8.- 


Chapter 


9.- 


Chapter 


10.- 


Chapter 


11.- 



TITLE 1 

CRIMINAL PROCEDURE 

Section 

-Arrest, Examination, Committment and Bail 1 

-Jurisdiction of Magistrates and Their Courts 19 

-Criminal Proceedings in Municipal Courts 49 

-Proceedings in Courts of General Sessions 71 

-Procedure Against Corporations 87 

-Rights of Persons Accused 91 

-Indictments and Trials 98 

-Appeals and New Trials 122 

-Judgment and Execution 132 

-The Writ of Habeas Corpus 160 

-Inquests on the Dead 180 



CRIMINAL CODE 



Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 10 

Chapter 11 

Chapter 12 



Chapter 13. 
Chapter 14. 
Chapter 15. 
Chapter 16. 
Chapter 17. 
Chapter 18. 
Chapter 19.- 
Chapter 20. 
Chapter 21. 
Chapter 22. 



9.—' 



TITLE 1 

FELONIES AND MISDEMEANORS 

Offenses Against the Person 1 

Offenses Against Property 31 

Trade Regulations and Offenses Against Public Policy 134 

Offenses Against the Public Peace 317 

Offenses Against Public Justice 339 

Offenses Against Morality and Decency 380 

Offenses Against Public Health 397 

Offenses Against the Currency 465 

Offenses by Certain Officers 468 

Transportation of and Cruelty to Animals 568 

■Bridges, Ferries, Highways and Rules of the Road 579 

Offenses by and Against Railroad Companies, Their Agents and 

Employees 662 

Offenses Relating to Assessment and Collection of Taxes 692 

Bastardy and Vagrancy 730 

Desecration of the Sabbath and of Religious Worship 736 

Gambling 742 

Game Laws and Protection of Birds and Animals 756 

Protection of Fish, Oysters, etc 803 

Intoxicating Liquors 834 

Violations of Insurance Laws 914 

Offenses Relating to Sailors and Immigrants 932 

Accessories and Aiders to Felonies 944 



TITLE 2 

PRISONS AND IMPRISONMENT 

Chapter 23. — Jails and Prisoners 946 

Chapter 24. — State Penitentiary 969 

Chapter 25. — Reformatories 1001 



CONSTITUTIONS 



Page 

The Constitution of the United States of America 559 

The Constitution of the State op South Carolina 579 



COURT RULES 

The Kules of the Supreme Court of South Carolina 659 

The Rules of Practice for the Circuit Courts of South Carolina .... 673 

The Eules of Practice for the Courts of Probate of South Carolina 692 



CODE OF CIVIL PROCEDURE 



Code of Civil Procedure 



TITLE 1 

Definitions and Preliminary Matter 

1. Division of Remedies. 5. Criminal Action. 

2. Action. 6. Civil Action. 

3. Special Proceeding. 7. No Merger of Civil and Criminal Rem- 

4. Division of Actions. edies. 

8. Division of Code of Procedure. 

§ 1. Division of Remedies. — Remedies in the Courts of Justice are divided 
into : 1. Actions. 2. Special proceedings. 

Civ. P. '22, § 1 ; Civ. P. '12, § 1 ; Civ. P. '02, § 1 ; 1870, XIV, 423, § 1. 

§ 2. Definition of an Action. — An action is an ordinary proceeding in a 
court of justice, by which a party prosecutes another party for the enforcement 
or protection of a right, the redress or prevention of a wrong, or the punishment 
of a public offense. 

Civ. P. '22, § 2 ; Civ. P. '12, § 2 ; Civ. P. '02, § 2 ; 1870, XIV, 423, § 2. 

§ 3. Definition of a Special Proceeding. — Every other remedy is a special 
proceeding. 

Civ. P. '22, § 3 ; Civ. P. '12, § 3 ; Civ. P. '02, § 3 ; 1870, XIV, 423, § 3. 

§ 4. Division of Actions into Civil and Criminal. — Actions are of two 
kinds : 1. Civil. 2. Criminal. 

Civ. P. '22, § 4 ; Civ. P. '12, § 4 ; Civ. P. '02, § 4 ; 1870, XIV, 423, § 4. 

§ 5. Definition of a Criminal Action. — A criminal action is prosecuted by 
the State, as a party, against a person charged with a public offense, for the 
punishment thereof. 

Civ. P. '22, § 5 ; Civ. P. '12, § 5 ; Civ. P. '02, § 5 ; 1870, XIV, 423, § 5. 

§ 6. Definition of a Civil Action. — Every other is a civil action. 
Civ. P. '22, § 6 ; Civ. P. '12, § 6 ; Civ. P. '02, § 6 ; 1870, XIV, 423, § 6. 

§ 7. Civil and Criminal Remedies Not Merged in Each Other. — Where the 
violation of a right admits of both a civil and criminal remedy, the right to pros- 
ecute the one is not merged in the other. 

Civ. P. '22, § 7 ; Civ. P. '12, § 7 ; Civ. P. '02, § 7 ; 1870, XIV, 423, § 7. 

§ 8. Division of the Code of Procedure. — This Code of Procedure is divided 
into two parts : the first relates to courts of justice and their jurisdiction ; tiie 
second relates to civil actions in the courts of this State. 

Civ. P. '22, § 8 ; Civ. P. '12, § 8 ; Civ. P. '02, § 8 ; 1870, XIV, 423, § 8. 



PART I 

Courts of Justice and Their Jurisdiction 



TITLE 1 

Designation of Courts of Justice 

§ 9. The Several Courts of the State. — The following are courts of justice 
in this State : 

1. The Court for Trial of Impeachments. 

2. The Supreme Court. 

3. The Circuit Courts, to wit: (1) A Court of Common Pleas; and (2) A 
Court of General Sessions. 

4. County Courts. 

5. Probate Courts. 

6. Magistrates Courts. 

7. Civil and Criminal Court of Sumter. • , 

8. Civil and Criminal Court of Charleston. 

9. City Court and Police Court of Charleston. 

10. Mayors and Municipal Courts. 

Civ. P. '22. § 9 ; Civ. P. '12, § 9 ; Civ. P. '02, § 9 ; 1870, 423, § 9 ; Const. Art V, 1 ; 1903, 
XXIV, 89 ; 1911, XXVII, 16. 

§ 10. Their Jurisdiction Generally. — These courts shall exercise the juris- 
diction now vested in them respectively, except as otherwise prescribed by this 
Code of Procedure or the laws of the State. 

Civ. P. '22, § 10 ; Civ. P. '12, § 10 ; Civ. P. '02, § 10 ; 1870, 423, § 10 ; 1903, XXIV, 89 ; 
1911, XXVII, 16. 



Chapter 


1. 


Chapter 


2. 


Chapter 


3. 


Chapter 


4. 


Chapter 


5. 


Chapter 


6. 


Chapter 


7. 


Chapter 


8. 


Chapter 


9. 


Chapter 


10. 



TITLE 2 
Courts and Judicial Officers 

The Supreme Court, § 11. 
The Circuit Courts, § 33. 
County Courts, § 75. 
The Probate Court, § 182. 
The Courts of Magistrates, § 234. 
Civil and Criminal Court of Sumter, § 253. 
The Civil and Criminal Court of Charleston, § 264. 
The City Court and the Police Court of Charleston, § 281. 
Attorneys, Solicitors and Counselors, § 304. 

General Provisions Respecting the Administration of Justice, 
§ 326. 



CHAPTER 1 

The Supreme Court 

Article 1. The Supreme Court and its Officers, § 11. 
Article 2. The Supreme Court and its Jurisdiction, § 26. 



Code of Civil Procedure § 11 

ARTICLE 1 

The Supreme Court And Its Officers 



11. 


Justices. IS. Reporter. 


12. 


Tenure. 19. Salaries of Justices. 


13. 


Term. 20. Vacancies. 


14. 


Qualification. 21. Special Justices. 


15. 


Court of Record. 22. Roster of Circuit Judges. 


16. 


Messenger and Attendant. 23. Service of Process. 


17. 


Clerk 24. Reports. 




25. Costs in Original Actions. 



§ 11. Members of Supreme Court — Election, Term of Office, Quorum — Ad 
journment. — The Supreme Court shall consist of a Chief Justice and four Asso- 
ciate Justices, who shall be elected by a joint viva voce vote of the General As- 
sembly, for the term of ten years, and shall continue in office until their succes- 
sors are elected and qualified, and shall be so classified that one of them shall go 
out of office every two years. Any three of the Justices shall constitute a quorum. 
It shall be the duty of all the Justices to be present, and the Chief Justice shall 
preside. In the absence of the Chief Justice, the Justice oldest in service shall 
preside. If at any stated term of the Court a quorum thereof shall not attend on 
the first day of the term, the Justice or Justices attending shall have the au- 
thority to adjourn the Court from day to day for ten days after the time ap- 
pointed for the commencement of the said term, unless a quorum shall sooner 
attend; or unless a sufficient number of men learned in the law, commissioned 
by the Governor, as provided in Section 21 of this Article, to make a quorum 
shall sooner attend; and the business of the Court shall not in such case be con- 
tinued over to the next stated term thereof, until the expiration of said ten days. 

Civ. P. '22, § 11 ; Civ. '12, § 3815 ; Civ. '02, § 2721 ; Const. Art. V, § 2 ; 1896, XXII, 3. 

§ 12. Tenure of Office. — The present Chief Justice and Associate Justices 
of the Supreme Court are declared to be the Chief Justice and three of the 
Associate Justices of said Court until the terms for which they were elected 
shall expire. 

Civ. P. '22, § 12 ; Civ. 12, § 3816 ; 1911, XXVII, 89. 

§ 13. Term of Office. — The term of office of the fourth Associate Justice 
shall commence upon his election and qualification and shall expire on the thirty- 
first day of July, in the year nineteen hundred and twenty. Hereafter the suc- 
cessors of the Chief Justice and Associate Justices shall each be elected at the 
session of the General Assembly next preceding the expiration of their respective 
terms, for a term of ten years. 

Civ. P. '22, § 13 ; Civ. '12, § 3817 ; 1911, XXVII, 89. 

§ 14. Qualification. — The Justices of the Supreme Court shall qualify with- 
in twelve months after the date of their election by taking the constitutional oath 
or the office shall be declared vacant by the Governor. The oath shall be admin- 
istered by a Justice of said Court or by a Circuit Judge. 

Civ. P. '22, § 14 ; Civ. '12, § 3818 ; Civ. '02, § 2722 ; G. S. 2090 ; R. S. 2222 ; 1896 ; XXII, 3. 

§ 15. A Court of Record. — The Supreme Court shall be a Court of Record, 
and the records thereof shall at all times be subject to the inspection of the citi- 
zens of the State or other persons interested. The records shall be kept in a man- 
ner prescribed by the Justices of the Court. 

Civ. P. '22, § 15 : Civ. '12, § 3819 ; Civ. '02, § 2723 ; G. S. 2091 ; R. S. 2223 ; 1896, XXII, 3. 

§ 16. Appointment of Messenger and Attendant — Term of Office — Salary. — 

The Supreme Court shall appoint a Messenger of the Court, and an Attendant, 



§ 17 Code of Civil Procedure 4 

to hold for the term of four years, and subject to removal by the Court, and shall 
prescribe the duties of the officers so appointed. The Messenger shall receive an 
annual salary of two hundred dollars. The Attendant shall receive a salary of 
two hundred dollars. 

Library in Care of Clerk. — The library of the Supreme Court shall be in the 
custody and care of the Clerk of said Court, who shall annually, with the con- 
sent and approval of the Court, employ some suitable person, as a departmental 
clerk, to care for and attend in the library and perform such duties with refer- 
ence thereto as may be prescribed by the Court. The librarian so employed may 
be discharged by order of the Court at any time, and shall receive such compen- 
sation as may be provided by law. Any woman who has attained the age of 
twenty-one years, and has been a resident of this State for two years may be em- 
ployed as such librarian. 

Civ. P. '22, § 16 ; Civ. '12, § 3820 ; Civ. '02, § 2724 ; G. S. 2094 ; R. S. 2226 ; 1896, XXII, 3 ; 
1918, XXX, 788. 

§ 17. Clerk — Fees and Salary. — The Supreme Court shall also appoint a 
Clerk, who shall hold his office for four years, and who shall have the custody 
and keeping of its records, and shall furnish certified copies thereof to persons 
desiring the same, upon the payment of the fees prescribed by law. And he shall 
receive a fee of fifty cents for each remittitur in civil cases, to be taxed as their 
costs and disbursements, and a similar fee for each certificate. His salary shall 
be eight hundred dollars per annum, to be paid out of the State Treasury, on 
the warrant of the Comptroller General. 

Civ. P. '22, § 17 ; Civ. '12, § 3821 ; Civ. '02, § 2725 ; R. S. 2234r-2236 ; G. S. 2109-2111 ; 
1896, XXII, 3. 

§ 18. Reporter to Be Appointed — Duties and Salary — Committee on Pub- 
lication of Reports — Alternative Contracts. — The Supreme Court shall appoint 
a Reporter for the term of four years, who shall take the constitutional oath be- 
fore any one of the Justices or the Clerk of the Supreme Court. The Clerk of 
the Supreme Court of this State is hereby required, upon the rendition of an 
opinion by the Supreme Court, to deliver forthwith to the Reporter of said 
Court a certified copy of all such decisions made by the Court, together wdth a 
copy of the printed arguments and the brief of counsel, for use in publishing the 
South Carolina Reports, as hereinafter provided; should any copies furnished 
by the said Clerk be used in the publication of any other reports than the official 
series of South Carolina Reports, the publisher shall pay the said Clerk the fees 
now provided by law for copies of opinions. The Speaker of the House of Rep- 
resentatives and the President of the Senate are hereby authorized and required 
to appoint a committee of three, composed of two members of the House of Rep- 
resentatives, to be appointed by the Speaker, and one member of the Senate, 
appointed by the President of the Senate, w^hich committee shall contract for five 
years at a time for the prompt editing, publishing and distribution of the said 
opinions and bound volumes thereof; shall contract with the Reporter of the 
Supreme Court to edit the reports of the cases decided by the Supreme Court, 
and with a competent publisher and printer, to print and distribute the same 
promptly. 

The reports of the decisions shall contain at least such matter as is now found 
in the South Carolina Reports including a syllabus of the decisions, citations, 
statements of the testimony and pleadings sufficient to give an understanding of 
the case and the decision of the Court, and an alphabetical list (at the end of the 
volume) of all cases mentioned in any way in the decisions, and a full and com- 



5 Code of Civil Procedure § 19 

plete digest and index to the contents of the volume. Each volume shall contain 
not more than one thousand pages, exclusive of index. 

Civ. P. '22, § IS ; Civ. '12, § 3822 ; Civ. '02, § 2726 ; G. S. 2102-2108 ; R. S. 2237-2241 ; 
1896, XXII, 3; 1901, XXIII, 622; 1920, XXXI, 1049; 1929, XXXVI, 52. 

§ 19. Salaries of Justices. — The Chief Justice and Associate Justices hold- 
ing office prior to the Act approved March 1, 1919, shall each receive an annual 
salary and shall not be allowed any fees or perquisites of office, nor shall they 
hold any other office of trust or profit under the State, the United States or any 
other power. 

The annual salaries of the Justices of the Supreme Court, after the expiration 
of their present terms, shall be seven thousand five hundred ($7,500.00) dol- 
lars each. Each Justice of the Supreme Court, whose present term has not ex- 
pired, shall, in addition to the salary now provided, dating from January 1, 1928, 
receive the sum of three thousand ($3,000.00) dollars per annum for expenses. 

Civ. P. '22, § 19 ; Civ. '12, § 3823 ; Civ. '02, § 2727 ; G. S. 2088 ; R. S. 2220 ; 1901, XXIII, 
622 ; 1905, XXIV, 845 ; 1917, XXX, 131 ; 1919, XXXI, 101 ; 1928, XXXV, 1237. 

§ 20. Vacancies — How Filled. — All vacancies in the Supreme Court shall 

be filled by elections as herein prescribed : Provided, That if the unexpired term 

does not exceed one year such vacancy may be filled by Executive appointment, 

but when a vacancy is so filled by either appointment or election the incumbent 

shall hold only for the unexpired term of his predecessor. 

Civ. P. '22, § 20; Civ. '12, § 3824; Civ. '02, § 2728; G. S. 2088; R. S. 2220; 1901, XXIII^ 
622. 

§ 21. Justices Disqualified in Certain Cases — Special Justices. — No Justice 
shall preside in any case, or at the hearing thereof, in which he may be interested^ 
or when either of the parties shall be connected with him by affinity or consan- 
guinity within the sixth degree, or in which he may have been counsel, or has 
presided in any inferior Court. In case all or any of the Justices of the Supreme 
Court shall be thus disqualified, or be otherwise prevented from presiding in 
any cause or causes, the Court, or the Justices thereof, shall certify the same to 
the Governor of the State, and he shall immediately commission specially the 
requisite number of men learned in the law for the trial and determination there- 
of. When such appointments are made by the Governor, such person or persons 
shall receive as compensation for their services while so acting as Associate Jus- 
tice of the Supreme Court for the time actually engaged in performing such 
services, the same salary allowance and expenses and stenographic hire as an 
Associate Justice of the Supreme Court would receive for the same period. Such 
salary and expense allowance shall be figured in the ratio that the number of 
days such Associate Justice is actually engaged in sitting with the Court bears to 
the number of days that the Court is actually in session during the year, except 
that in the event such Acting Associate Justice shall sit and hear only one cause, 
he shall receive only fifty per cent of the salary and allowances herein fixed. The 
same to be paid upon a voucher approved by the Chief Justice. 

Civ. P. '22, § 21 ; Civ. '12, § 3825 ; Civ. '02, § 2729 ; Const. Art . V, 6 and 12 ; 1887, XIX, 
85 ; 1926, XXXIV, 1040. 

§ 22. Assignment of Roster of Circuit Judges— Duties of Clerk— Compen- 
sation. — Between the first and fifteenth days of December in each year the 
Chief Justice, or in his absence or inability to attend, the senior Associate Jus- 
tice, shall form a roster of the Circuit Judges of the several circuits in order to 
arrange a regular and continuous assignment and interchange of circuits among 
said Judges, and make an order assigning the several Circuit Judges to hold the 
several Circuit Courts in all of the circuits of the State for the whole of the sue- 



§ 23 Code of Civil Procedure ^ 6 

ceeding year in such order as will effect a continuous interchange of circuits ac- 
cording to said numerical series. Immediately thereupon the Chief Justice,. or, 
in his absence or inability to act, the senior Associate Justice, shall direct the 
Clerk of the Supreme Court to furnish each of the Circuit Judges, as well as the 
Chief Justice and senior Associate Justice, with a certified copy of said order, 
which shall be sufficient notice to the said Circuit Judges of their assignment 
aforesaid, and they shall proceed to hold the Courts in the circuits to which they 
are respectively assigned at the time appointed by law for the several Circuit 
Courts to be held, and the Clerk of the Supreme Court shall also forthwith trans- 
mit a certified copy of said order to the Clerk of every Circuit Court of the State. 
As a compensation for the services thus required of the Clerk of the Supreme 
Court, he shall be entitled to draw from the State Treasurer, upon the warrant 
of the Comptroller General, who is hereby directed to issue the same, the sum of 
ten dollars, to be paid out of any money in the State Treasury not otherwise ap- 
propriated. 

Civ. P. '22, § 22 ; Civ. '12, § 3826 ; Civ. '02, § 2730 ; 1896, XXII, 3. 

§ 23. May Require Sheriffs to Serve Process, Etc. — The Supreme Court is 
empowered to require the Sheriff of each and every county to whom any order 
or process issuing from said Court may be directed to serve and execute the 
same, and shall have the same power to enforce such service and execution and 
to punish default thereon as is vested in Circuit Courts in processes issuing there- 
from. The Sheriff and Clerk of each and every county, whenever required, shall 
attend any hearing in any case by any of the Justices at the court house in any 
of the counties. 

Civ. P. '22, § 23 ; Civ. '12, § 3827 ; Civ. '02, § 2731 ; 1896, XXII, 3. 

§ 24. Distribution of Reports of Supreme Court. — The State Librarian shall 
distribute the copies of the Reports of the Decisions of the Supreme Court of 
South Carolina purchased by the State as follows : To the office of the Governor 
of the State, of the Attorney General of the State and of the Attorney General 
of the United States, one copy each; to the Circuit Judges of the State, one copy 
each; to the Library of the Supreme Court of the United States, the Congres- 
sional Library at Washington City, the Clerk of the Circuit Court of Appeals 
of the United States for the Fourth Circuit, the Library of the South Carolina 
University, the Charleston Library Society, and the Clerk of the Circuit Court 
of the United States for the District of South Carolina, one copy each ; to the 
Library of the Supreme Court of this State, eight copies; to every State and 
Territory of the United States from which this State receives two or more copies 
of each volume of their law reports, two copies each; and to CA^ery other State 
and Territory of the United States, one copy each ; and all copies of South Caro- 
lina Reports, not heretofore disposed of and not distributed under the provi- 
sions of this Section, shall be retained in the State Library for the use of this 
State. 

Civ. P. '22, § 24 ; Civ. '12, § 3828 ; Civ. '02, § 2732 ; G. S. 2107 ; R. S. 2242 ; 1880, XVII, 
533 ; 1908, XXV, 1128 ; 1917, XXX, 64. 

§ 25. Costs in Actions Brought in Original Jurisdiction of Supreme Court. — 

In all actions and proceedings brought in the Supreme Court in its original ju- 
risdiction, the Court shall have the power to provide, by rule, order or otherwise, 
for the payment of reasonable costs and disbursements of the case by the losing 
party, or otherwise, as in the judgment of the Court may be just and proper, 
such costs and disbursements to be taxed and adjusted by the Clerk of said Court 
under direction of the Court ; that when the Clerk has taxed such costs and dis- 
bursements under the direction of the Court, he shall certify the taxation to the 



7 Code of Civil Procedure § 26 

Clerk of the Coin^t of Common Pleas for the comity in which the party resides 
against whom such costs and disbursements have been taxed ; that the said Clerk 
of the Court of Common Pleas shall enter judgment therefor, as other judgments 
are entered, and shall issue execution for the enforcement of said judgment; 
that the judgment so entered shall have the same force and effect in all respects 
as judgments rendered by the Court of Common Pleas: Provided, That in no 
case shall the costs exceed the sum of one hundred dollars. 
Civ. P. '22, § 25; Civ. '12, § 3829; 1909, XXVI, 162. 



ARTICLE 2 
Supreme Court And Its Jurisdiction 

26. Jurisdiction. 29. Printing of Testimony. 

27. Powers on Appeal. 30. Number to Concur. 

28. Terms. 31-2. Place for holding Court. 

§ 26. Jurisdiction of Supreme Court. — (A) The Supreme Court shall have 
power to issue writs or orders of injunction, mandamus, quo warranto, prohibi- 
tion, certiorari, haieas corpus and other remedial and original writs : each of the 
Justices of the Supreme Court shall have the same power at chambers, to admin- 
ister oaths, issue writs of habeas corpus, mandamus, quo warranto, certiorari, 
prohibition and. interlocutory writs or orders of injunction as when in open 
Court: Provided, an appeal shall be allowed from his decision to the Supreme 
Court. 

Civ. P. '22, § 26 ; Civ. P. '12, § 11 ; Civ. P. '02, § 11 ; 1896, XXII, § 1. 

(B) Where Issues of Fact Arise. — ^Whenever in the course of any such ac- 
tion or proceeding in the Supreme Court, arising in the exercise of the original 
jurisdiction conferred upon the Court by the Constitution and laws of the State, 
an issue of fact shall arise upon the pleadings, or when an issue of fact shall 
arise upon a traverse to return in mandamus, prohibition, certiorari, or whenever 
the determination of any question of fact shall be necessary to the exercise of the 
jurisdiction conferred upon the Supreme Court, the said Court shall have power 
to frame an issue therein and certify the same to the Circuit Court for the county 
wherein the cause shall have originated, or in case of original jurisdiction to the 
Circuit Court of the county in which the cause of action shall have arisen. The 
Supreme Court shall also have the same powers as are now possessed by the Cir- 
cuit Court of the State for the appointment of Referees to take testimony and 
report thereon, under such instructions as may be prescribed by said Court, in 
any cases arising in the Supreme Court wlierein issues of fact shall arise. 

Civ. P. '22, § 26; Civ. P. '12, § 11; Civ. P. '02, § 11; 1896, XXII, § 1. 

(C) Appellate Jurisdiction in Chancery.— The Supreme Court shall have 
appellate jurisdiction only in cases of chancery, and in such appeals they shall 
review the findings of fact as well as the law, except in chancery cases when the 
facts are settled by a jury and the verdict not set aside. 

Civ. P. '22, § 26 ; Civ. P. '12, § 11 ; Civ. P. '02, § 11 ; 1896, XXII, § 1. 

(D) Appellate Jurisdiction in Law Cases. — The Supreme Court shall have 
appellate jurisdiction for correction of errors of law in law cases, and shall re- 
view upon appeal : 

(1) Any intermediate judgment, order or decree in a law case involving the 
merits in actions commenced in the Court of Common Pleas and General Ses- 
sions, brought there by original process, or removed there from any inferior 
Court or jurisdiction, and final judgments in such actions : Provided, If no ap- 



§ 27 Code of Civil Procedure 8 

peal be taken until final judgment is entered, the Court may upon appeal from 
such final judgment review any intermediate order or decree necessarily affecting 
the judgment not before appealed from. 

Civ. P. '22, § 26 ; Civ. P. '12, § 11 ; Civ. P. '02, § 11 ; 1896, XXII, § 1. 

(2) An order affecting a substantial right made in an action, when such order 
in effect determines the action and prevents a judgment from which an appeal 
might be taken, or discontinues the action, and when such order grants or re- 
fuses a new trial ; or when such order strikes out an answer or any part thereof, 
or any pleading in any action; upon any appeal from an order granting a new 
trial on a case made, or on exceptions taken, if the Supreme Court shall deter- 
mine that no error was committed in granting the new trial, it shall render judg- 
ment absolute upon the right of the appellant; and after the proceedings are 
remitted to the Court from which the appeal was taken, an assessment of dam- 
ages, or other proceedings to render the judgment effectual, may be then and 
there had in cases where such subsequent proceedings are requisite. 

Civ. P. '22, § 26 ; Civ. P. '12, § 11 ; Civ. P. '02, § 11 ; 1896, XXII, § 1 ; 1901, XXIII, 623. 

(3) A final order affecting a substantial right made in any special proceed- 
ing, or upon a summary application in any action after judgment, and upon 
such appeal to review any intermediate order involving the merits and neces- 
sarily affecting the order appealed from. 

Civ. P. '22, § 26 ; Civ. P. '12, § 11 ; Civ. P. '02, § 11 ; 1896, XXII, § 1. 

(4) An interlocutory order or decree in the Court of Common Pleas, granting 
or continuing or modifying or refusing an injunction, or else granting or con- 
tinuing or modifying or refusing the appointment of a Receiver hereafter 
granted in any action : Provided, That the notice of appeal must be given within 
ten days from written notice of the filing of such interlocutory order or decree ; 
and such appeal shall take precedence in the Supreme Court; and the proceed- 
ings in other respects in the Court below shall not be stayed during the pendency 
of such appeal unless otherwise ordered by the Court below. 

Civ. P. '22, § 26 ; Civ. P. '12, § 11 ; Civ. P. '02, § 11 ; 1896, XXII, § 1. 

§ 27. Powers of Court in Cases of Appeal. — The Supreme Court may re- 
verse, affirm or modify the judgment, decree or order appealed from in whole or 
in part, and as to any or all of the parties, and the judgment shall be remitted to 
the Court below to be enforced according to law. When a judgment or decree is 
reversed or affirmed by the Supreme Court, every point made and distinctly 
stated in the cause and fairly arising upon the record of the case shall be con- 
sidered and decided, and the reason thereof shall be concisely and briefly stated 
in writing and preserved in the record of the case. 

Civ. P. '22, § 27 ; Civ. P. '12, § 12 ; Civ. P. '02, § 12 ; 1896, XXII, 7. 

(1) Decisions — When Filed. — The Justices of the Supreme Court shall file 
their decisions in sixty days from the last day of the Court at which the cases 
were heard. 

Civ. P. '22, § 27 ; Civ. P. '12, § 12 ; Civ. P. '02, § 12 ; 1896, XXII, 7. 

(2) Opinion Attached by Clerk to Judgment — Fees. — The Clerk of the 
Supreme Court shall attach to the judgment remitted to the Court below, a 
copy of the opinion of the Supreme Court, if any, rendered in such cases, and 
shall receive as his fee for services in remitting the judgment and opinion the 
sum of one dollar and fifty cents in each case, to be taxed against the losing 
party, by the Clerk of the Court of Common Pleas, and when collected, by any 
officer or attorney, shall be remitted to the Clerk of the Supreme Court ; and he 



9 Code of Civil Procedure § 28 

shall be entitled to charge and collect a fee of one dollar and fifty cents for any 
opinion, judgment or order which he may furnish any party ordering same. 
Civ. P. '22, § 27 ; Civ. P. '12, § 12 ; Civ. P. '02, § 12 ; 1904, XXIV, 389. 

§ 28. Terms of Supreme Court — Notice — Docketing. — (1) The Supreme 
Court shall hold at least nine terms in each year at the seat of government, com- 
mencing on the second Mondays in each month, except the months of July, 
August and September, and each of said terms shall be continued for so long 
a period as the public interest may require. The Court may also hold such addi- 
tional number of terms or sessions as the public interest may require, the time 
and place therefor to be appointed and fixed by the Court, ten days' notice of 
such time and place to be given to the attorneys or counsel appearing in the 
cases docketed, in such manner as the Court by its rules or orders may provide. 
The Court may by general rules prescribe and provide the order in which cases 
shall be docketed, and the priority thereof on the Calendar, subject to the pro- 
visions of the following Section. 

(2) Priority op Appeals. — On a second and each subsequent appeal to the 
Supreme Court, or when an appeal has once been dismissed for defect or irregu- 
larity, the cause shall be placed upon the Calendar as of the time of filing the 
first appeal and may be noticed and put on the Calendar for any succeeding 
term ; and whenever, in any action or proceeding in which the State or any State 
officer or any board of State officers is or are sole plaintiff or defendant, an ap- 
peal has been, or shall be, brought up from any judgment or order for or against 
him or them in any Court, such appeal shall have preference in the Supreme 
Court and may be moved by either party out of the order on the Calendar. 

(3) Disposition of Appeals Not Eeaghed. — If the cases on the Calendar and 
set for hearing cannot be heard in the period allotted, the Court shall continue 
the same to be heard after the regular call of the cases for that session or may 
call an extra term for the hearing of the same or continue them to the next stated 
term thereafter. 

(4) Court May Make Rules. — The Court shall have full power and authority 
to establish and promulgate such rules and regulations as may be necessary to 
carry into effect the provisions of this Act and to facilitate the work of the 
Supreme Court. 

(5) Docketing Fee — Taxation.- — In all appeals, other than in criminal cases, 
the appellant shall, v/hen the return is filed with the Clerk of the Supreme Court, 
paj^ to said Clerk a fee of three dollars to be retained by him as his compensation 
for docketing the cause and keeping counsel advised as to the time when the 
cause is to be called for hearing, as the Court may provide in its rules ; which fee 
shall be taxed against the losing party as a part of the costs and disbursements 
in the Supreme Court. 

1923, XXXIII, 32. 

§ 29. Printing of Testimony Upon Appeals to Supreme Court. — On all ap- 
peals to the Supreme Court from the County Court, Court of Common Pleas, and 
Court of General Sessions, when it is necessary to print the testimonj^, or any 
part thereof, the same shall be printed in question and answer form as taken by 
the official stenographer unless otherwise agreed to by parties or attorneys. Only 
the necessary and pertinent testimony to which one or more exceptions relate 
shall be printed, and in case more than the necessary testimony is printed, then 
the Court shall tax the cost of all testimony unnecessarily printed against the 
offending party. 

1923, XXXIII, 107. 



§ 30 Code of Civil Procedure 10 

§ 30. Number to Agree to Constitute a Judgment — ^When Circuit Judges 
to Sit Also. — In all cases decided by the Supreme Court the concurrence of 
three of the Justices shall be necessary for a reversal of the judgment below; 
subject to the provisions hereinafter prescribed. Whenever upon the hearing of 
any cause or question before the Supreme Court, in the exercise of its original 
or appellate jurisdiction, it shall appear to the Justices thereof, or any three of 
them, that there is involved a question of constitutional law, or of conflict be- 
tween the Constitution and laM^s of this State and of the United States, or be- 
tween the duties and obligations of her citizens under the same, upon the deter- 
mination of which the entire Court is not agreed; or whenever the Justices of 
the said Court, or any two of them, desire it on any cause or question so before 
said Court, the Chief Justice, or in his absence the presiding Associate Justice, 
shall call to the assistance of the Supreme Court all the Judges of the Circuit 
Court : Provided, That when the matter to be submitted is involved in an appeal 
from the Circuit Court the Circuit Judge who tried the case shall not sit. A 
majority of the Justices of the Supreme Court and Circuit Judges shall consti- 
tute a quorum. The decision of the Court so constituted, or a majority of the 
Justices and Judges sitting, shall be final and conclusive. In such case the Chief 
Justice, or in his absence the presiding Associate Justice, shall preside. Whenever 
the Justices of the Supreme Court and the Judges of the Circuit Court meet to- 
gether for the purposes aforesaid, if the number thereof qualified to sit consti- 
tute an even number, then one of the Circuit Judges must retire, and the Circuit 
Judges present shall determine by lot which of their number shall retire. When- 
ever the Circuit Judges are called to sit with the Justices of the Supreme Court 
for the determination of any cause or causes, the actual traveling and other ex- 
penses of each Judge so attending shall be paid by the Governor out of his civil 
contingent fund upon an itemized statement made out and certified to by each 
Judge. 

Civ. P. '22, § 29 ; Civ. P. '12, § 14 ; Civ. P. '02, § 14 ; 1870, XIV, 314. 

§ 31. Sheriffs to Provide Rooms, Etc. — If, at any term of the Supreme 
Court, proper and convenient room, both for the consultation of the Judges and 
the holding of the Court, with furniture, attendants, fuel, lights and stationery, 
suitable and sufficient for the transaction of its business, be not provided for in 
the place where by law the Court may be held, the Court may order the Sheriff 
of the county to make such provision, and the expenses incurred by him in carry- 
ing the order into effect shall be paid from the State Treasury. 

Civ. P. '22, § 30 ; Civ. P. '12, § 15 ; Civ. P. '02, § 15 ; 1870, XIV, 495. 

§ 32. Courts — ^Where Held — Adjournment. — The Supreme Court may be 
held in other buildings than those designated by law as places for holding Courts, 
and at a different j)lace, at the same city or town, from that at which it is ap- 
pointed to be held. Any one or more of the Judges may adjourn the Court with 
the like effect as if all were present. 

Civ. P. '22, § 31 ; Civ. P. '12, § 16 ; Civ. P. '02, § 16 ; 1870, XIV, 314. 



11 



Code of Civil Procedure 



§ 33 



Article 1. 
Article 2. 



CHAPTER 2 
Circuit Courts 

Circuit Courts and Judges, § 33. 
Circuits and Terms of Courts, § 50. 



ARTICLE 1 

Circuit Courts And Judges 



33. Always Open. 

34. New Trials. 

35. Change of Venue. 

36-7. Judges' Power at Chambers. 
38. Powers in other Circuits. 
39-40. Duties. 
41. Salaries. 



42. Neglect of Duty. 

43. Disability of Judges. 

44. Special Judges. 

45. Juries for Special Court. 

46. Business at Special Court. 

47. Salary of Special Judges. 
48-9. Stenographer. 



§ 33. To Be Always Open for Certain Purposes. — The Circuit Courts shall 
be deemed always open, for the purpose of issuing and returning mesne and final 
process and commissions, and for making and directing all interlocutor^^ motions, 
orders, rules and other proceedings whatever, preparatory to the hearing of all 
causes pending therein upon their merits; and it shall be competent for any 
Judge of the said Courts, upon reasonable notice to the parties, in the Clerk's 
office or at chambers, and in vacation as w^ell as in term, to make, direct, and 
award, all such process, commissions, and interlocutory orders, rules, and other 
proceedings, whenever the same are not grantable of course, according to the 
rules and practice of the Court. 

Civ. P. '22, § 32 ; Civ. '12, § 3830 ; Civ. '02, § 2733 ; G. S. 2112 ; R. S. 2244 ; 1868, XIV, 
136. 

§ 34. May Grant New Trials — Rules. — Circuit Courts shall have power to 
grant new trials in cases where there has been a trial by jury for reasons for 
which new trials have usually been granted in the Courts of law of this State; 
and they shall have power to administer all necessary oaths or affirmations, and 
punish, by fine or imprisonment, at the discretion of said Courts, all contempts 
of authority in any cause or hearing before the same, and to make and establish 
all necessary rules for the orderly conducting of business in said Courts : Fro- 
vided. Such rules are not repugnant to the laws of the State or the rules pre- 
scribed by the Justices of the Supreme Court and Circuit Judges. 

Civ. P. '22, § 33 ; Civ. '12, § 3831 ; Civ. '02, § 2734 ; G. S. 2113 ; R. S. 2245 ; 1868, XIV, 
136. 

§ 35. Change of Venue — When and How Made. — The Circuit Courts shall 
have power to change the venue in all cases, civil and criminal, pending therein, 
and OA^er which said Courts have original jurisdiction, by ordering the record 
to be removed to another county in the same circuit. The application for re- 
moval must be made to the Judge sitting in regular term by some party inter- 
ested, or by the Solicitor of the Circuit or accused, supported by affidavit that a 
fair and impartial trial cannot be had in the coanty where such action or prose- 
cution was commenced. The State shall have the same right to make application 
for a change of venue that a defendant has in cases of murder, arson, rape, bur- 
glary, perjury, forgery or grand larceny : Provided, No change of venue shall be 
granted in such cases until a true bill has been found by a grand jury. Four 
days notice of such application in civil and criminal cases shall be given to the 
adverse party, and if a change is ordered, it shall be to a county in the same 



§ 36 Code of Civil Procedure 12 

Judicial Circuit : Provided, further, That such adverse party to whom said notice 
is given shall have the right to waive the same ; and the Circuit Judge shall have 
the power, upon application made to him by either party, upon proper cause 
shown, to shorten or extend the time for the hearing of such application for a 
change of venue. 

Civ. P. '22, § 34 ; Civ. '12, § 3832 ; Civ. '02, § 2735 ; G. S. 2114 ; R. S. 2246 ; 1870, XIV, 
839 ; 1896, XXII, 12 ; 1905, XXIV, 845. 

§ 36. Powers of Circuit Judges at Chambers as to Writs, Demurrers, Equity 
Cases, etc. — The Judges of the Court of Common Pleas shall have power at 
chambers to grant writs of prohibition, mandamus and certiorari, and to hear 
and determine demurrers and motions to set aside or stay execution in the same 
manner, in every- respect as if the Court were actually sitting, and with the con- 
sent of all such adult parties as may have answered, or their attorneys, in a 
cause, and of the guardian ad litem of infants therein; to hear and determine 
any matter not properly triable before a jury, and the persons, respectively, 
shall have the same right of appeal as if the decision was made in open Court; 
they may hear and determine actions for partition and foreclosure suits when 
not contested, either within or without the county where the land in question 
lies, and may grant all writs and processes in such actions at chambers, in like 
manner with the same effect as are now granted in term time, with the consent 
of all such adult parties as may have answered or their attorneys, and of the 
guardian ad litem of infants therein, and in default cases not requiring the ver- 
dict of a jury may render judgment as in open Court. 

In all contested equity cases when the testimony has all been taken, any party 
may have the case heard and determined by any Judge within the circuit in 
which the case is pending, at chambers as fully and effectually as if heard in 
open Court by giving the adverse party or parties, or their attorneys ten days 
written notice of time and place of such hearing. 

1922, XXXII, 903. 

§ 37. Powers of Circuit and Special Judg^es at Chambers — Notice. — All 

regular and special Judges shall have at chambers in any county within the cir- 
cuit in which they are resident or in the circuit in which they are assigned to 
hold Court, all powers and jurisdiction which they have and exercise in open 
Court in any county within said circuit, except for the determination of such 
matters as necessitate trial by jury. They may hear and determine actions for 
partition and foreclosure suits and all other equitj' matters concerning real es- 
tate whether within or without the county where the land in question lies : Pro- 
vided, In all contested matters the adverse shall be entitled to notice of the 
time and place of any hearing at chambers, which notice when not otherwise 
fixed by statute or rule, shall be in ten days. 

Judge of Adjoining Circuit to Have Jurisdiction When No Resident or 
Special Judge is on Circuit. — In case any Judicial Circuit is without a resident 
Judge, by reason of death, absence, disqualification or otherwise and no other 
Judge, special or regular, is presiding therein, then jurisdiction in all matters 
arising in such circuit is conferred upon and shall be exercised by the resident 
Judge of the adjoining circuit or by any Judge presiding therein; and any 
Judge exercising such jurisdiction shall first satisfy himself of the necessity of 
same b}^ affidavit of the moving party. 

Civ. P. '22, § 35 ; Civ. '12, § 3833 ; Civ. '02, § 2736 ; G. S. 2115 ; R. S. 2247 ; 1818, VII, 
321; 1882, XVIII, 38; 1887, XIX, 813; 1891, XX, 1123; 1899, XXIII, 30; 1908, XXV, 
1055 ; 1920, XXXI, 806 ; 1921, XXXII, 281 : 1925, XXXIV, 94 ; 1930, XXXVI, 1247. 

§ 38. Powers of Judges Holding Courts in Other Circuits. — Every Judge, 
while holding the Circuit Court for any circuit pursuant to the provisions of 



13 Code of Civil Procedure § 39 

the law of this State, shall be iiwested with powers equal to those of the Judge 
of such Circuit, and may hear and determine all causes and motions and grant 
all orders in open Court or at chambers which it is competent for the Judge re- 
siding in such circuit to hear, determine, or grant, any law, usage, or custom to 
the contrary notwithstanding. 

Civ. P. '22, § 36 ; Civ. '12, § 3834 ; Civ. '02, § 2737 ; G. S. 2116 ; R. S. 2248 ; 1878, XVI, 
395. 

§ 39. To Discharge All Duties on Circuits. — Every Circuit Judge in this 
State shall at all times have jurisdiction to discharge and perform all the duties 
of his office within the circuit wherein he resides, except the holding of Circuit 
Courts therein when some other Circuit Judge shall be engaged in holding said 
Courts. 

Civ. P. '22, § 37 ; Civ. '12. § 3835 ; Civ. '02, § 2738 ; G. S. 2117 ; R. S. 2249 ; 1878, XVI, 395. 

§ 40. Cannot Absent Themselves from State Without Permission. — No Cir- 
cuit Judge shall absent himself from this State without leave first granted in 
writing by the Chief Justice or presiding Associate Justice. 

Civ. P. '22, § 38 ; Civ. '12, § 3836 ; Civ. '02, § 2739 ; G. S. 2119 ; R. S. 2250 ; 1877, XVI, 229. 

§ 41. — Salaries of Circuit Judges. — The annual salaries of the Judges of the 
Circuit Courts, after the expiration of their present terms, shall be seven thou- 
sand five hundred ($7,500.00) dollars, each. Each Judge of the Circuit Courts, 
whose present term has not expired, shall, in addition to the salary now pro- 
vided dating from January 1, 1929, receive the sum of three thousand five hun- 
dred ($3,500.00) dollars per annum for expenses, payable in twelve equal 
monthly installments. 

Civ. P. '22. § 39 : Civ. '12. § 3837 : Civ. '02, § 2740 ; G. S. 2420 ; R. S. 2351 ; 1893, XXI, 
417 ; 1919, XXXI. 101 ; 1929, XXXVI, 7. 

§ 42. Amenable for Neglect of Duty as to Holding Terms, etc., Proceedings. 

— If any Circuit Judge shall fail or neglect to hold the term or terms of any 
Court of General Sessions or Common Pleas in any circuit to which he may be 
assigned until the business of said Courts shall have been disposed of, or the end 
of the term, or terms, arrives, or shall fail to recognize and obey the order of 
assignment of the Chief Justice or presiding Associate Justice, or shall violate 
anj^ provisions of this Chapter, the Attorney General of the State shall, upon 
any reliable information of the same, by official communication, bring such vio- 
lations of this Chapter to the notice of the General Assembly at its first session, 
and such Circuit Judge shall be held amenable to proceedings for neglect of duty, 
as provided in the Constitution. 

Civ. P. '22, § 40 ; Civ. '12, § 3838 ; Civ. '02, § 2741 ; G. S. 2124 ; R. S. 2255 ; 1877, XVI, 
229. 

§ 43. Circuit Judges to Notify Chief Justice of Inability or Disability to 
Hold Court. — It shall be the duty of each Circuit Judge, when disabled by sick- 
ness or other cause to hold any Court to which he may be assigned, to give, or 
cause to be given, prompt notice of such inability or disability to the Chief 
Justice, so that his place may be temporarily filled and the Court held according 
to law. 

Civ. P. '22, § 41 ; Civ. '12, § 3839 ; Civ. '02, § 2742 ; R. S. 2256 ; 1892, XXI, 4. 

§ 44. Provision Where Judge Is Unable to Hold Court — Special Judge. — 

Whenever any Circuit Judge, pending his assignment to hold the Courts of 
any Circuit, shall die, resign, be disabled hy illness or be absent from the State, 
or in case of a vacancy in the office of Circuit Judge of any Circuit, or in case 
the Chief Justice or presiding Associate Justice of the Supreme Court shall 



§ 45 Code of Civil Procedure 14 

order a special Court of Common Pleas and General Sessions, or Common Pleas, 
or General Sessions, in any county in this State, upon a satisfactory showing 
that such special Court is needed, the Chief Justice or presiding Associate Jus- 
tice shall assign any other Circuit Judge disengaged to hold the Courts of such 
Circuits, or to fill any appointment made necessary by such vacancy, or to hold 
such special Court; and in the event that there be no other Circuit Judge dis- 
engaged, then the Governor, upon the recommendation of the Supreme Court, 
or the Chief Justice thereof if the Supreme Court be not in session, shall imme- 
diately commission as special Judge such persons learned in the law as shall be 
recommended to hold the Courts of such Circuit or to hold such special Court 
for that term only. And any special Judge so appointed shall receive as com- 
pensation for his services the salary prescribed in Section 47. Whenever the 
time fixed for holding any of the Courts of General Sessions or Common Pleas 
in this State should be found to be not sufficient for the trial of all cases before 
said Court, a like assignment of a disengaged Circuit Judge or commission of 
a special Judge may be made to hold the Court to which the Judge then holding 
such overcrowded Court may have been in due course next assigned, and the 
term of such overcrowded Court shall proceed until the cases before it are dis- 
posed of. 

Whenever a special Judge shall be appointed to hold any Court, he shall have 
and exercise all the powers and duties that a regular Judge would have if pre- 
siding. 

Civ. P. '22, § 42; Civ. '12, § 3840; Civ. '02, § 2743; G. S. 2123; R. S. 2254; 1896, XXII, 
11 ; 1925, XXXIV, 5 ; 1929, XXXVI, 258. 

§ 45. How Juries for Special Court Are Drawn and Summoned. — When 

notified of such appointment, the Clerk of the said Court shall notify the proper 
authorities, and the Grand Jury shall be summoned to attend, if it be a Court 
of Sessions, and a petit jury shall be drawn and summoned, if jury cases are 
to be tried, in the regular manner, for the purpose of said Court, and as the 
same may be necessary, and the Clerk shall notify said special Judge of the time 
fixed for holding said special term of Court. 

Civ. P. '22, § 43 ; Civ. '12, § 3842 ; Civ. '02, § 2745 ; 1900, XXIII, 329. 

§ 46. What Business May Be Transacted at Special Court. — If a special 
term of the Court of General Sessions only is ordered, after disposing of the 
sessions business, the said Judge may also open the Court of Common Pleas for 
the transaction of any business which the parties or their attorneys may consent 
to be disposed of by him. 

Civ. P. '22, § 44; Civ. '12, § 3843; Civ. '02, § 2746; 1900, XXIII, 329. 

§ 47. Salary of Special Judge. — The said special Judge shall be allowed 
for his services ten dollars per day and his necessary expenses, and the same 
per diem for not exceeding five days for the preparation of his decrees. 

Civ. P. '22, § 45 ; Civ. '12, § 3844 ; Civ. '02, § 2747 ; 1900, XXIII, 329. 

§ 48. When Stenographer for Special Term of Court May Be Appointed. — 

It shall be lawful for the presiding Judge at any special term of the Circuit 
Court, where the official Stenographer is performing the duties of his office 
at a Court then being held in some other county of the Circuit to appoint a 
Stenographer for said term of the Court, who shall perform the duties of the 
office of Court Stenographer for said term of Court. 

Civ. P. '22, § 46 ; Civ. '12, § 3845 ; Civ. '02, § 2748 ; 1900, XXIII, 329. 



15 Code of Civil Procedure § 49 

§ 49. Compensation of Stenographer Appointed for Special Term of Court. 

— The Stenographer appointed under the provision of the foregoing Section 
shall receive the same compensation as that allowed by law to the official Stenog- 
rapher in proportion to the time of service, to be paid out of the County Treas- 
ury, upon the warrant of the Clerk of the Court, approved by the presiding 
Judge, and also the usual fees for copies of testimony and reports of Court 
proceedings, to be paid by the parties ordering the same. 

Civ. P. '22, § 47 ; Civ. '12, § 3S46 ; Civ. '02, § 2749 ; 1900, XXIII, 329. 



ARTICLE 2 
Circuits And Terms of Courts. 



50. Fourteen Circuits. 


61. Eleventh Circuit. 


51. First Circuit. 


62. Twelfth Circuit. 


52. Second Circuit. 


63. Thirteenth Circuit. 


53. Third Circuit. 


64. Fourteenth Circuit. 


54. Fourth Circuit. 


65-6 & 68. General Sessions and Common 


55. Fifth Circuit. 


Pleas. 


56. Sixth Circuit. 


67 & 71. Adjournment. 


57. Seventh Circuit. 


69. Special Sessions. 


58. Eighth Circuit. 


70. Petit Jurors. 


59. Ninth Circuit. 


72. Oath. 


60. Tenth Circuit. 


73. A Court of Record. 




74. Clerk and Deputy Clerk. 



§ 50. State Divided Into Fourteen Circuits. — The State is divided into 
fourteen Judicial Circuits as follows : 

The First Circuit shall be composed of the Counties of Calhoun, Dorchester, 
Orangeburg, and Berkeley. The Second Circuit shall be composed of the Coun- 
ties of Aiken, Bamberg and Barnwell. The Third Circuit shall be composed of 
the Counties of Clarendon, Lee, Sumter and Williamsburg. The Fourth Circuit 
shall be composed of the Counties of Chesterfield, Darlington, Marlboro and Dil- 
lon. The Fifth Circuit shall be composed of the Counties of Kershaw and Rich- 
land. The Sixth Circuit shall be composed of the Counties of York, Chester, 
Lancaster and Fairfield. The Seventh Circuit shall be composed of the Counties 
of Cherokee, Spartanburg and Union. The Eighth Circuit shall be composed of 
the Counties of Abbeville, Greenwood, Laurens and Newberry. The Ninth Circuit 
shall be composed of the County of Charleston. The Tenth Circuit shall be com- 
posed of the Counties of Anderson and Oconee. The Eleventh Circuit shall be 
composed of the Counties of Lexington, McCormick, Saluda and Edgefield. 
The Twelfth Circuit shall be composed of the Counties of Florence, Georgetown, 
Horry and Marion. The Thirteenth Circuit shall be composed of the Counties of 
Greenville and Pickens. The Fourteenth Circuit shall be composed of the Coun- 
ties of Allendale, Hampton, Colleton, Jasper and Beaufort. 

Civ. P. '22, § 48 ; Civ. P. '12, § 17 ; Civ. P. '02, § 17 ; 1912, XXVII, 827 ; 1914, XXVIII, 
579, 636 ; 1916, XXIX, 688, 717 ; 1919, XXXI, 5 ; 1870, XIV, § 17 ; 1868, XIV, 5, 72 ; 1869, 
XIV, 198; 1872, XV, 146; 1878, XVI, 376; 1871, XIV, 659, § 2; 1882, XVII, 682; 1889, 
XX, 518 ; 1871, XIV, 696, § 6 ; 1897, XXII, 583, § 10 and 597, § 5 ; 1897, XXII, 592, § 7 ; 

1897, XXII, 609, § 11 ; Con., 1895, page 96 and 1896, XXII, 250, § 6 ; 1899, XXIII, 31, § 5 ; 

1898, XXII, 879 ; 1899, XXIII, 179, § 4 ; 1908, XXV, 1002, 1283 ; 1910, XXVI, 867 ; 1926, 
XXXIV, 1041 ; 1927, XXXV, 68. 

§ 51. Courts in First Circuit. — The Courts in the First Circuit shall be held 
as follows : 

(1) Berkeley County. — The Court of General Sessions for the County of 
Berkeley shall be held at Moncks Corner on the first Monday in April and the 
first Monday in November. The Court of Common Pleas of the said County shall 



§ 52 Code of Civil Procedure 16 

be held at Moncks Corner on the Tuesday following the first Monday in April ; 
and on the third Monday in June without jury; and on the first Monday in 
December. 

(2) The Court of General Sessions for Calhoun County shall be held at St. 
Matthews as follows: On the fourth Monday in May; fourth Monday in No- 
vember, and the Court of Common Pleas for the said County shall be held 
at St. Matthews on the fourth Monday in April ; the second Monday in Septem- 
ber, without jury, and the third Monday in November. 

(3) The Court of General Sessions for Dorchester County shall be held at St. 
George on the second Monday in March; third Monday in October. The Court 
of Common Pleas for the said County shall be at St. George on the Tuesdays 
succeeding the Mondays heretofore fixed for the holding of the Court of General 
Sessions, also one week's Court beginning on the third Monday in May, and also 
one week's Court beginning on the fourth Monday in October, and also a Court 
of Common Pleas at the said place on the second Monday in July, without jury. 

(4) The Court of General Sessions for the County of Orangeburg shall be held 
at Orangeburg the first Monday in January, two weeks ; first Monday in May, 
two weeks ; third Monday in September, two weeks. The Court of Common Pleas 
for the County of Orangeburg shall be held at Orangeburg on the third Monday 
in March, two weeks ; third Monday in April, first Monday in June, two weeks ; 
the first Monday in October, two weeks, and the second Monday in November. 

That at the terms of Court of the General Sessions, the Court of Common 
Pleas shall be open for the taking of any verdict or judgment by default or con- 
sent and for the transaction of equity business where the same does not conflict 
with the business of the Court of Oeneral Sessions. 

Civ. P. '22, § 49 ; Civ. P. '12, § 18 ; Civ. P. '02, § 18 ; 1886, XIX, 473 ; 1898, XXII, 684 ; 
1901, XXIII, 624; 1908, XXV, 1010; 1909, XXVI, 230; 1911, XXVII, 88; 1912, XXVII, 
771, 772 ; 1913, XXVIII, 117 ; 1915, XXIX, 387, 547 ; 1916, XXIX, 690 ; 1917, XXX, 145 ; 
1919, XXXI, 238 ; 1921, XXXII, 56 ; 1925, XXXIV, 59 ; 1926, XXXIV, 935 ; 1928, XXXV, 
1204. 

§ 52. Courts in Second Circuit. — The Courts of the Secand Circuit shall 
be held as follows : 

(1) Aiken County, — The Court of General Sessions for the County of Aiken 
shall be held at Aiken on the fourth Monday in January, two weeks ; the first 
Monday in May, two weeks ; the third Monday in October, two weeks. The Court 
of Common Pleas for said County of Aiken shall be held at Aiken on the fourth 
Monday in March, three weeks ; on the second Monday in June, one week ; on 
the third Monday in November, three weeks. 

(2) Bamberg County. — The Court of General Sessions for Bamberg County 
shall be held at Bamberg on the third Monday of February, one week; on the 
third Monday in September, one week. The Court of Common Pleas for said 
County shall be held at Bamberg on the third Monday in April, two weeks ; on 
the second Monday in July, one week, and on the first Monday in November, 
two weeks. 

(3) Barnwell County. — The Court of General Sessions for Barnwell County 
shall be held at Barnwell on the fourth Monday in February, one week; the 
fourth Monday in May, one week; the second Monday in December, one week. 
The Court of Common Pleas for said County shall be held at Barnwell the second 
Monday in March, two weeks ; the third Monday in June, two weeks ; the fourth 
Monday in September, two weeks. 

(4) Common Pleas During General Sessions. — That at any term of the 
Court of General Sessions for either of said Counties, the Court of Common Pleas 



17 Code of Civil Procedure § 53 

shall be open for transaction of any equity business or taking of judgments by 

default, or the hearing of any other civil business by consent. 

Civ. P. '22, § 50; Civ. P. '12, § 19; Civ. P. '02, § 19; 1897. XXII, 444; 1910, XXVI. .",42; 
1911, XXVII, 87 ; 1912, XXVII, 770 ; 1914, XXVIII, 607 ; 1915, XXIX, 198 ; 1916, XXIX, 
691, 699 ; 1917, XXX, 135 ; 1919, XXXI, 43 ; 1920, XXXI, 855 ; 1924, XXXIII, 930 ; 1926, 
XXXIV, 991. 

§ 53. Courts in Third Circuit.— The Courts of the Third Circuit shall be 
held as follows : 

(1) Clarendon County. — The Court of General Sessions at Manning, for 
the County of Clarendon, on the first Monday in February, the second Monday 
after the second Monday in June, and the third Monday in September. The Court 
of Common Pleas at the same place on the fourth Monday after the second Mon- 
day in February, the third Monday after the second Monday in June, and the 
seventh Monday after the second Monday in September. 

(2) Lee County. — The Court of Genera:l Sessions at Bishopville, for the 
Count}^ of Lee, on the third Monday after the second Monday in February, on 
the first Monday after the second Monday in June, on the second Monday in 
September, and the Court of Common Pleas at the same place on the ninth 
Mondaj^ after the second Monday in February, the Wednesday first succeeding 
the first Monday after the second Monday in June, and the eleventh Monday 
after the second Monday in September. 

(3) Sumter County. — The Court of General Sessions at Sumter, for the 
County of Sumter, on the second Monday in February, on the fourth Monday 
after the second Monday in June, and the ninth Monday after the second Mon- 
day in September; Provided, That t?ie Court of General Sessions provided to 
convene on the fourth Monday after the second Monday in June for Sumter 
County may continue its session until the business thereof may be disposed of; 
and the Court of Common Pleas at the same place on the sixth Monday after the 
second Monday in February, on the fifth Monday after the second Monday in 
June, and on the third Monday after the second Monday in September. 

(4) Williamsburg County. — The Court of General Sessions at Kingstree, 
for the County of Williamsburg, on the second Monday after the second Monday 
in February, the second Monday in June, and the second Monday after the 
second Monday in September; the Court of Common Pleas at the same place 
on the eleventh Monday after the second Monday in February, on Wednesday 
first succeeding the second Monday in June, and on the thirteenth Monday after 
the second Monday in September : Provided, That no jury trial of civil cases 
shall be had at the summer term except by consent. The petit juries for the 
first and third terms of the Court of General Sessions shall not be required to 
attend the first and third terms of the Court of Common Pleas, but separate 
juries shall be drawn and summoned for said Courts : Provided, That the pre- 
siding Judge may open the Court of General Sessions at any term herein fixed 
for the Court of Common Pleas, and the Grand Jury of the County in which said 
Court may be sitting may be summoned and pass upon any bills of indictment 
handed out by the Solicitor of the Third Circuit, and pleas of guilty may be 
taken at such term of Court. 

(5) Separate Juries for General Sessions and Common Pleas. — Separate 
juries are to be drawn for the Court of General Sessions and the Courts of Com- 
mon Pleas for all terms for Sumter County and for the first and third terms 
for Lee and Williamsburg Counties. 

(6) Opening Court of Common Pleas. — Should the business of the Court 
of General Sessions for any of said counties, at any term, be completed or sus- 



§ 54 Code of Civil Procedure 18 

pended before the time fixed by law for the opening of the Court of Common 
Pleas, the presiding Judge shall open the Court of Common Pleas for said coun- 
ty, for the trial of all cases and the transaction of all business pending therein, 
except the trial of jury cases, which may be tried at such time only by the con- 
sent of the parties or their attorneys. The Courts of Common Pleas in said 
counties shall be open at all terms of the Courts of General Sessions for the 
purpose of rendering judgments by default and by the consent of the parties, 
or their attorneys, for the trial of such equity cases as may be ready for hear- 
ing, for granting orders of reference, and other orders of course, and for the 
purpose of transacting all other business of a regular term of the Court of 
Common Pleas, except trial by jury. 

Civ. P. '22, § 51 ; Civ. P. '12, § 20 ; Civ. P. '02, § 20 ; 1884 ; XVIII, 888 ; 1896, XXII, 22 ; 
1900, XXIII, 311; 1902, XXIII, 1194, 1910, XXVI, 541; 1914, XXVIII, 531; 1916, 
XXIX, 693 ; 1924, XXXIII, 1187 ; 1928, XXXV, 1288 ; 1929, XXXVI, 79. 

§ 54. Courts in Fourth Circuit. — The Courts of the Fourth Circuit shall be 
held as follows, to wit: 

(1) Courts of General Sessions: At Dillon, for Dillon County, on the third 
Monday in February, the first Monday in June, and the first Monday in Sep- 
tember. 

At Darlington, for Darlington County, the second Monday in February, 
the second Monday in June, and the second Monday in September. 

At Chesterfield, for Chesterfield County, the first Monday in February, the 
third Monday in June, and the third Monday in September. 

At Bennettsville, for Marlboro County, the fourth Monday in February, 
the fourth Monday in June, and the fourth Monday in September. 

Courts of Common Pleas ; 

At Dillon, for Dillon County, the first Monday in April, the first Monday in 
July, and the first Monday in October, 

At Darlington, for Darlington County, the last Monday in January, the 
third Monday in March, the second Monday in July, and the third Monday in 
October. 

At Chesterfield, for Chesterfield County, the first Monday in March, the 
third Monday in July, and the second Monday in November. 

At Bennettsville, for Marlboro County, the third Monday in April, the 
fourth Monday in July, and the fourth Monday in November. 

(2) Powers of Special Judges. — Whenever a special judge shall be appointed 
to hold any Court in any county of the Fourth Judicial Circuit, he shall have 
and exercise all the powers and duties throughout the circuit that a regular 
Judge would have if presiding. 

(3) Time Pleadings, Etc, Are Returnable. — All the recognizances, plead- 
ings, notices and papers, whether dated heretofore or hereafter, shall be return- 
able and applicable to the terms of the Court as fixed by this Section, and the 
Clerk of the Court for each county in this Fourth Judicial Circuit shall give two 
weeks notice of each and every term of the Court in some newspaper published 
in the county, stating the day of the month on which the next Court will open 
for the county. 

(4) Opening Court of Common Pleas. — As to all the Courts of the Fourth 
Judicial Circuit, the presiding Judge of the Court of General Sessions is hereby 
authorized to open the Court of Common Pleas, render judgment by default, 
and by consent of parties to try (at any time between the days on which said 



19 Code of Civil Procedure § 55 

Courts of General Sessions open and close) any civil action in the same man- 
ner and with the same effect as if said action should be tried at a regular term 
of the Court of Common Pleas. 

Civ. P. '22, § 52 ; Civ. P. '12, § 21 ; Civ. P. '02, § 21 ; 1S83, XVIII, 305 ; 1887, XIX, 999 ; 
1897, XXII, 404; 1901, XXIII, 627; 1910, XXVI, 544; 1911, XXVII, 80; 1924, XXXIII, 
932 ; 1925, XXXIV, 233. 

§ 55. Courts in the Fifth Circuit. — The Courts of the Fifth Circuit shall be 
held as follows : 

(1) Courts in Kershav^ County. — The Court of General Sessions for Ker- 
shaw County shall be held in Camden on the second Monday in February, the 
first Monday in July, the fourth Monday in October, and the second Monday in 
December ; and the Court of Common Pleas for said county on the second Mon- 
day in March, the third Monday in June, and the first Monday in November. 

(2) Terms op Court in Richland County. — The Courts of General Sessions 
for Richland County shall be held in Columbia on the second Monday in January, 
the third Monday in April, the first Monday in June, and the first Tuesday in 
September; and the Courts of Common Pleas for said county in the same place 
on the third Monday in February, the fourth Monday in March, the second 
Monday in May, the fourth Monday in September, and the third Monday in 
November. And at the term of the General Sessions herein provided for the 
Court of Common Pleas shall be open for the taking of any verdict or judgment 
by default or consent and for the transaction of any other business of the Court 
of Common Pleas when the same does not conflict with the business of the 
Courts of General Sessions. 

(3) Common Pleas During General Sessions. — At the terms of the General 
Sessions herein provided for in the Fifth Circuit, the Court of Common Pleas 
shall be open for the taking of any verdict or judgment by default or consent, 
and for the transaction of any other business of the Court of Common Pleas 
when the same does not conflict with the business of the Courts of General Ses- 
sions. 

1924, XXXIII, 933 ; 1926, XXXIV, 991, 999. 

(4) Terms Designated. — The Courts held under the provisions hereof in the 
F'ifth Circuit, during the first four months of the year, shall be known as the 
spring term of the Court of General Sessions and Common Pleas, respectively; 
during the next four months as the summer terms of said Courts, respectively; 
and during the last four months as the fall terms of said Courts, respectively. 
And the two sessions of the Court of Common Pleas herein appointed for Rich- 
land County during each of the terms above designated shall be known as the 
First and Second Sessions, respectively, of such terms. 

Civ. P. '22, § 53 ; Civ. P. '12, § 22 ; Civ. P. '02, § 22 ; 1877, XVI, 299 ; 1896, XXII, 24 ; 
1899, XXIII, 33 ; 1910, XXVI, 541 ; 1912, XXVII, 768 ; 1913, XXVIII, 13. 

§ 56. Courts in Sixth Circuit.— The Courts of the Sixth Circuit shall be 
held as follows : 

(1) Fairfield County. — The Court of General Sessions at Winnsboro, for 
the County of Fairfield, on the third Monday in February, the second Monday 
in June and the first Monday in September; and the Court of Common Pleas 
at the same place on the second Monday in March and the second Monday in 
October. 

(2) Lancaster County. — The Court of General Sessions at Lancaster, for 
the County of Lancaster, on the fourth Monday in February, the third Monday 
in June, and the third Monday in September ; and the Court of Common Pleas 



§ 56 Code of Civil Procedure 20 

at the same place on the fourth Monday in March, and the fourth Monday in 
October. 

- (3) Chester County. — The Court of General Sessions at Chester, for the 
County of Chester, on the first Monday in January, on the first Monday in 
March, the first Monday in July and the first Monday in October; and the 
Court of Common Pleas at the same place, commencing on the second Monday 
in January and continuing for a term of two weeks, the first Monday after the 
fourth Monday in March, and on the second Monday after the fourth Monday 
in October. 

(4) York County. — The Court of General Sessions at York, for the County 
of York on the fourth Monday in January and on the third Monday after the 
fourth Monday in March, on the second Monday in July, the second Monday 
in September and on the fourth Monday after the fourth Monday in October; 
and the Court of Common Pleas at the same place on the Wednesday first fol- 
lowing the Mondays fixed for the holding of the Court of General Sessions at 
the same place except that there shall be no term of the Court of Common Pleas 
to follow the Court of General Sessions which is provided for on the fourth 
Monday in January : Provided, That nothing herein contained shall be held to 
limit the Court of General Sessions to two days, if the work before the Court is 
not concluded in such time : Provided, further, That the Court of Common Pleas 
where following the Court of General Sessions at the same term of the Circuit 
for said County, may be opened immediately after the adjournment of such 
Court of General Sessions, if the work of the latter be concluded in less than 
two days : Provided, furiJier, That where the Court of Common Pleas follows 
the Court of General Sessions at the same term of the Circuit Court for said 
County, Calendar one of the Court of Common Pleas shall not be called per- 
emptorily until the Mondays following the Mondays fixed for holding the Court 
of General Sessions at said place, but this latter provision shall not apply to the 
summer term : Provided, further. That jury trial of civil cases shall not be had 
at the January term; and, Provided, further, That only one venire of jurors 
shall be drawn for the February term, the jurors for said term to be summoned 
to attend on the Monday first following the convening of the Court, for service 
during that week of the said term. 

(5) Common Pleas Following General Sessions. — "Whenever in this section 
provision is made for Court of General Sessions only, the Judge presiding shall, 
at the conclusion of any such Court of General Sessions, open the Court of Com- 
mon Pleas without juries, and give judgments by default on Calendar 3, hear 
and determine equity cases, and transact all other business of a regular term of 
Court of Common Pleas, except trials by jury. 

(6) Duration of Terms of Common Pleas — Equity Cases. — There shall be 
allowed for the trial of jury cases, equity cases, motions and special matters, 
if the business of the Court demands it, at least two weeks each at the Spring and 
Winter terms of Court of Common Pleas for Fairfield, Chester and York Coun- 
ties, and one week at the Spring term and two weeks at the Winter term of 
Court of Common Pleas for the County of Lancaster. And in each of said coun- 
ties, upon the demand of either party, equity cases shall be tried in open Court, 
upon testimony then and there offered ; the same to be taken down by the Court 
Stenographer as a part of his official duty. 

In any Court in any county of the Sixth Judicial Circuit, civil cases may be 
tried by consent at the conclusion of any term of the Court of General Sessions : 



21 Code op Civil Procedure § 57 

Provided, Such trial be had during the same week in which the General Sessions 
Court adjourns. 

Civ P '22, § 54 ; Civ. P. '12, § 23 ; Civ. P. '02, § 23 ; 1885, XIX, 223 ; 1899, XXII, 34 ; 
1900, XXIII, 312; 1907, XXV, 617; 1911, XXVII, 64; 1916, XXIX, 698; 1922, XXXII, 
838 ; 1925, XXXIV, 29 ; 1929, XXXVI, 41 ; 1930, XXXVI, 1098, 1264. 

§ 57. Courts in Seventh Circuit. — The Courts of the Seventh Circuit shall 
be held as follows : 

(1) Cherokee County. — The Court of Common Pleas for Cherokee County 
shall convene at Gaffney on the first Monday of March for two weeks, on the first 
Monday of July for one week, and on the first Monday of November for two 
weeks. The Court of General Sessions for Cherokee County shall convene at 
Gaffney on the third Monday of March for two weeks, on the second Monday 
of July for one week, and on the third Monday of November for two weeks. 

1922, XXXII, 815. 

(2) The Court of Common Pleas for Spartanburg County shall convene on the 
third Monday of January for three weeks, on the fourth Monday of March for 
four weeks, on the fourth Monday of May for three weeks, on the third Monday 
of July for one week, and on the fourth Monday of September for four weeks ; 
the Court of General Sessions for Spartanburg County shall convene at Spar- 
tanburg on the first Monday of January for two weeks, on the fourth Monday 
after the fourth Monday of March for one week, on the third Monday after 
the fourth Monday of May for one week, on the fourth Monday of July for one 
week, and on the fourth Monday after the fourth Monday of September for one 
week. 

Civ. P. '22, § .55; 1913, XXVIII, 30; 1916, XXIX, 695. 

(3) The Court of Common Pleas for Union County shall convene at Union on 
the second Monday of February for two weeks ; on the first Monday of May for 
two weeks, and on the second Monday of September for one week, and on the 
first Monday of December for two weeks. The Court of General Sessions shall 
convene at Union on the fourth Monday of February for one week ; on the third 
Monday of May for one week ; on the third Monday of September for one week, 
and on the third Monday of December for one week. 

Civ. P. '22, § 55 ; 1912, XXVII, 579 ; 1920, XXXI, 840. 

(4) Court of General Sessions. — Should the business of the Court of General 
Sessions for any of said counties, at any term, be completed or suspended be- 
fore the time fixed by this Section for the opening of the Court of Common 
Pleas, the presiding Judge shall open the Court of Common Pleas for said 
county, for the trial of all causes and the transaction of all business pending 
therein', except the trial of jury causes, which may be tried at such times, only 
by the consent of the parties or their attorneys. 

(5) Powers of Special Judge. — Whenever, for any reason, a special Judge 
shall be appointed to hold any Court in any county of this circuit, he shall have 
all the powers throughout the circuit that a regular Judge would have, if pre- 
siding. 

(6) When General Sessions Term May Be Continued. — If the business of 
the Court of General Sessions is not concluded at the end of any week, except the 
second week in January at Spartanburg, the petit jury drawn for that term of 
the Sessions Court shall be continued for the next week, or until the business 
of the Sessions Court is completed. 

(7) Court of Common Pleas to Be Opened During Court of Sessions 
For Transaction of Certain Business. — The Court of Common Pleas for each 



§ 58 Code of Civil Procedure 22 

of the counties within the circuit, shall be opened during the Court of Sessions, 
for the purpose of hearing equity cases, passing orders or transacting any Com- 
mon Pleas business not requiring a petit jury. 

Civ. P. '22, § 55 ; Civ. P. '12, § 24 ; Civ. P. '02, § 24 ; 1914, XXVIII, 602 ; 1916, XXIX, 
695 ; 1889, XX, 359 ; 1896, XXII, 25 ; 1898, XXII, 685 ; 1899, XXIII, 35 ; 1906, XXV, 48, 49 ; 
1908, XXV, 1011. 

§ 58. Courts of Eighth Circuit. — The Courts of the Eighth Circuit shall be 
held as follows : 

(1) Abbeville County. — The Court of General Sessions at Abbeville for the 
County of Abbeville, on the fourth Monday in February; the first Monday in 
June; and the first Monday in September; and the Court of Common Pleas at 
the same place, on the fourth Monday in March, to last for two weeks, if so 
much be necessary, and on the second Monday in October, for one week, and on 
the second Monday in December for one week, 

(2) Greenwood County. — The Court of General Sessions at Greenwood, for 
the County of Greenwood the first Monday in March, fourth Monday in June, 
and the second Monday in September ; and the Court, of Common Pleas at the 
same place on the second Monday in April, and the second Monday in November, 
for two weeks, if so much be necessary. 

(3) Laurens County. — The Court of General Sessions at Laurens, for the 
County of Laurens, on the third Monday in February, for one week, the second 
Monday in June, and the fourth Monday in September, for two weeks, if so much 
be necessary ; and the Court of Common Pleas, at the same place, on the second 
Monday in March and the second Monday in May, to continue for three weeks, 
if so much be necessary, and on the fourth Monday in October for two weeks if 
necessary. 

(4) Newberry County. — The Court of General Sessions at Newberry, for the 
County of Newberry, on the third Monday in March, on the third Monday of 
June, and on the third Monday in October, for one week ; and the Court of Com- 
mon Pleas, at the same place, on the fourth Monday in April, on the third Mon- 
day in September, on the fourth Monday in November, to continue for two weeks 
if necessary. 

(5) The Court of Common Pleas in all the counties of the Eighth Judicial 
Circuit shall be opened at all terms of the Court of General Sessions for the 
purpose of rendering judgment by default, and for the trial of such equity cases 
as may be ready for hearing, and for granting orders of reference and other 
orders in civil cases. 

Civ. P. '22, § 56; Civ. P. '12, § 25; Civ. P. '02, §§ 24, 25; 1889, XX, 360; 1891, XX, 1113; 
3896, XXII, 26; 1899, XXIII, 37; 1900, XXIII, 314; 1901, XXIII, 629; 1910, XXVI, 538; 
1916, XXIX, 696 ; 1919, XXXI,, 113 ; 1920, XXXI, 807 ; 1925, XXXIV, 277 ; 1928; XXXV, 
1152. 

§ 59. Courts in Ninth Circuit. — The Courts of the Ninth Circuit shall be 

held as follows : 

(1) Charleston County, — The Court of General Sessions for the County of 
Charleston shall be held at Charleston on the second Monday in March, two 
weeks ; on the first Monday in June, two weeks ; on the second Monday in Sep- 
tember, two weeks; and on the third Monday in November, two weeks. The 
Court of Common Pleas for said County shall be held at the same place on the 
first Monday in February, three weeks ; on the last Monday of March, five weeks ; 
on the first Monday in October, five weeks. 

(2) Common Pleas During General Sessions, — At the terms of Court of 
General Sessions, provided for in this Section, the Court of Common Pleas for the 



23 Code op Civil Procedure § 60 

respective counties shall be open for the taking of any verdict, or judgment by 

default or consent, and for the purpose of hearing equity cases, passing orders, 

or transacting any other civil business where the same does not conflict with the 

business of General Sessions. 

Civ. P. '22. § 57: Civ. P. '12. § 26; Civ. P. '02. § 18: 1884. XVIII. 686: 1887, XIX, 987; 
1894, XXI, 717; 1898, XXII, 683; 1899, XXIII, 258; 1900, XXIII, 309; 1909, XXVI, 163; 
1913, XXVIII, 19, 31 ; 1915, XXIX, 179 ; 1917, XXX, 138 ; 1920, XXXI, 725 ; 1921, XXXII, 
203 ; 1926, XXXIV, 1048 ; 1930, XXXVI, 1135. 

§ 60. Courts in Tenth Circuit. — The Courts of the Tenth Circuit shall be 
held as follows : 

(1) Anderson County. — The Court of General Sessions at Anderson, for the 
County of Anderson, beginning on the first Monday in February, the second 
Monday in May, the first Monday in September and the third Monday in No- 
vember ; and the Court of Common Pleas, at same place, beginning on the second 
Monday in March, the second Monday in April, and the third Monday in June, 
the first Monday in October and the first Monday in December. 

(2) Oconee County. — The Court of General Sessions, at Walhalla, for the 
Gountj^ of Oconee, beginning the first Monday in March, the first Monday in 
July and the first Monday in November ; and the Court of Common Pleas, at the 
same place, beginning on the fourth Monday in March, the second Monday in 
July and the third Monday in October. 

(3) At the time allotted for the Court of General Sessions for Anderson and 

Oconee County, the Court of Common Pleas may be opened for the purpose of 

granting judginents by default and hearing matters without a jury. 

Civ. P. '22, § 58 ; Civ. P. '12, § 27 : Civ. P. '02, § 25 ; 1908, XXV, 1013 ; 1912, XXVII, 
549 ; 1913, XXVIII, 138 ; 1914, XXVIII, 608. 

§ 61. Courts in Eleventh Circuit. — The Courts of the Eleventh Circuit shall 
be held as follows : 

(1) Lexington County. — The Court of General Sessions for the County of 
Lexington, at Lexington Court House, on the third Monday in January, the 
fourth Monday in May and the second Monday in September ; and the Court of 
Common Pleas, at the same place, on the fourth Monday in March, Wednesday 
after the fourth Monday in May, and the second Monday in November. 

(2) McCoRMiCK County. — The Court of General Sessions for the County of 
McCormick, at McCormick, on the first Monday in February ; the third Monday 
in June and the first Monday in October ; and the Court of Common Pleas, at the 
same place, on Wednesday after the first Monday in February, Wednesday after 
the third Monday in June and Wednesday after the first Monday in October; 
and the same panel of petit jurors shall be eligible to serve for both the Courts 
of General Sessions and Common Pleas, at each term of Court. 

(3) Saluda County. — The Court of General Sessions for the County of 
Saluda shall convene at Saluda Court House on the fourth Monday in February, 
the fourth Monday in July, and the fourth Monday in September. The terms of 
the Court of Common Pleas for Saluda County shall convene at Saluda Court 
House as follows : The Spring term of Court of Common Pleas shall conven?, 
on the third Monday in April ; the Summer term of Court of Common Pleas 
shall convene at Saluda Court House on the fourth Monday in February, the 
General Sessions, and the same panel of petit jurors shall be eligible to serve 
both the Courts of General Sessions and Common Pleas at July term of said 
Courts. The Fall term of Court of Common Pleas shall convene on the first 
Monday in December and continue for as many weeks as may be necessary to 
transact the business of said Court. 



§ 62 Code of Civil Procedure 24 

(4) Edgefield County. — The Court of General Sessions for the County of 
Edgefield, at Edgefield Court House, on the first Monday in March, the second 
Monday in July and the third Monday in October; and the Court of Common 
Pleas, at the same place, on the second Monday in March, Wednesday after the 
second Monday in July, the third Monday in July, and the fourth Monday in 
October ; and the same panel of petit jurors shall be eligible to serve for both 
the Courts of General Sessions and Common Pleas at the July term of Court. 
Provided, That a new panel of petit jurors shall be drawn as now provided by 
law for the term commencing the third Monday in July. 

(5) Calendars to Be Called. — The presiding Judge shall call Calendars 2 
and 3 peremptorily at the close of the Sessions Court, if there be time for the 
same, in the Counties of Lexington and Saluda, after the work of the Sessions 
Court shall have been concluded. 

Civ P. '22, § 59; Civ. P. '32, § 28; Civ. P. '02, § 22; 1877, XVI, 299; 1896, XXII, 24; 
1897, XXII, 433 ; 1899, XXIII, 33, 685 ; 1909, XXVI, 169 ; 1916, XXIX, 717 ; 1917, XXX, 
53 ; 1930, XXXVI, 1111, 1170. 

§ 62. Terms of Court in Twelfth Circuit. — The Courts of the Twelfth Cir- 
cuit shall be held as follows : 

(1) General Sessions — Horry County. — The Court of General Sessions 
at Conway, for the County of Horry, on the first Monday in March, for two 
weeks; on the first Monday in June, for one week, and on the third Monday 
in September, for one week ; and the Court of Common Pleas at the same place 
on the Wednesdays succeeding the Mondays herein fixed for the holding of the 
Court of General Sessions at said place. 

(2) General Sessions— Marion , County. — The Court of General Sessions 
at Marion, for the County of Marion, on the second Monday after the first Mon- 
day in March, for one week; on the first Monday after the first Monday in 
June, for one week, and on the first Monday after the third Monday in Septem- 
ber, for one week. 

(3) General Sessions — Florence County. — The Court of General Sessions 
at Florence, for the County of Florence, on the first Monday in January, one 
week; on the third Monday after the first Monday in March, for two weeks; 
on the second Monday after the first Monday in June for one week, and on the 
second Monday after the third Monday in September, for two weeks. 

(4) General Sessions — Georgetov^^n County. — The Court of General Ses- 
sions at Georgetown, for the County of Georgetown, on the fifth Monday after 
the first Monday in March, for one week ; on the third Monday after the first 
Monday in June, for one week, and on the fourth Monday after the third Mon- 
day in September, for one week. 

(5) Common Pleas — Horry County. — The Court of Common Pleas at Con- 
way, for the County of Horry, on the sixth Monday after the first Monday in 
March, for two weeks; the fourth Monday after the first Monday in June, for 
two weeks, if so much be necessary, and on the fifth Monday after the third 
Monday in September, for two weeks. 

(6) Common Pleas — Marion County. — The Court of Common Pleas at 
Marion, for the County of Marion, on the eighth Monday after the first Monday 
in March, for one week, and on the eleventh Monday after the third Monday in 
September, for as many weeks as may be necessary. 

(7) Common Pleas — Florence County. — The Court of Common Pleas at 
Florence, for the County of Florence, on the first Monday in February, for two 
weeks ; on the tenth Mondaj^ after the first Monday in March, for as many weeks 



25 Code of Civil Procedure § 63 

as may be necessary, and on the seventh Monday after the third Monday in 

September, for two weeks. 

(8) Common Pleas — Georgetown County. — The Court of Common Pleas 

at Georgetown, for the County of Georgetown, on the third Monday in February, 

for two weeks, or so much thereof as may be necessary; on the ninth Monday 

after the first Monday in March, for one week, and on the ninth Monday after 

the third Monday in September, for two weeks, or so much thereof as may be 

necessary. 

Civ. P. '22. § 60; Civ. P. '12, § 29; Civ. P. '02. §§ 20. 21; 1909, XXVI, 23; 1915, XXIX, 
71 ; 1919, XXXI, 76, 1920, XXXI, 718 ; 1928, XXXV, 1250. 

§ 63. Courts in Thirteenth Circuit.— The Courts of the Thirteenth Circuit 
shall be held as follows : 

(1) Greenville County. — Court of Common Pleas at Greenville, for the 
County of Greenville, fourth Monday in January, three weeks ; fourth Monday in 
March, four weeks; third Monday in May, two weeks; third Monday in June, 
two weeks ; second Monday in September, two weeks ; second Monday in October, 
two weeks ; second Monday in November, four weeks. 

The Court of General Sessions at Greenville, for the County of Greenville, 
second Monday in January, two weeks ; second Monday in March, two weeks ; 
first Monday in May, two weeks ; fourth Monday in August, two weeks ; fourth 
Mondaj- in October, two weeks. 

(2) Pickens County. — The Court of General Sessions at Pickens, for the 
County of Pickens, the first Monday in June, and the fourth Monday in Sep- 
tember ; and the Court of Common Pleas, at the same place, on Wednesday after 
the first Monday in June, and on Wednesdaj^ after the fourth Monday in Sep- 
tember: Provided, That at the Fall term of Court for said County of Pickens 
the Jury Commissioners, upon recommendation of the members of the bar, may 
draw two panels of petit jurors, the second panel to be summoned to appear for 
service on Monday following the week assigned for the trial of criminal cases for 
the trial of civil jury cases. Provided, further. That in Pickens County the terms 
of Court shall remain as now provided by law, except the February term of the 
Court of General Sessions which shall open on the third Monday in February, 
for two weeks, if necessarj^, and that the Court of Common Pleas shall open on 
Wednesday following the third Monday in February to be continued through 
the week, following the fourth Monday in February if Common Pleas business 
not requiring a jury. 

Civ. P. '22, § 61; Civ. P. '12, §§ 19, 26; Civ. P. '02, § 19; 1883, XVIII, 462; 1884, XVIII, 
886 ; 1896, XXII, 20 ; 1900, XXIII, 310 ; 1901, XXIII, 624 ; 1910, XXVI, 542 ; 1911, 1922, 
XXXII, 841 ; 1923, XXXIII, 101 ; 1927, XXXV, 78 ; 1929, XXXVI, 38. 

§ 64. Courts in Fourteenth Circuit. — The Courts in the Fourteenth Judicial 
Circuit shall be held as follows : 

(1) Colleton CouNTY.-^The Courts of General Sessions for the County of 
Colleton, at Walterboro, on the first Monday in January, for two weeks ; on the 
second Monday in June, for one week, and the third Monday in September, for 
one week. The Courts of Common Pleas for said County of Colleton, at Walter- 
boro, on the first Monday in April, for two weeks, and on the fourth Monday in 
October, for two weeks : Provided, That at the June Court of General Sessions 
there shall only be tried jail cases. 

(2) Hampton County. — The Courts of General Sessions for the County of 
Hampton, at Hampton, on the first Monday in February for not longer than one 
week ; on the first Monday in June for not longer than one week, and on the fourth 
Monday in September for not longer than one week. The Courts of Common 



§ 65 Code of Civil Procedure 26 

Pleas for said County of Hampton, at Hampton, on the second Monday in Feb- 
ruary for not longer than two weeks, on the Wednesday following the first Mon- 
day in June for not longer than the remainder of said week, and on the first 
Monday in October for not more than two weeks. 

(3) Beaufort County. — The Courts of General Sessions for the County of 
Beaufort, at Beaufort, on the first Monday in March for not longer than one 
week, on the fourth Monday in June for not longer than one week, and on the 
fourth Monday in November for not longer than one week. The Courts of Com- 
mon Pleas for the said County of Beaufort, at Beaufort, shall convene on the 
third Monday of March for two weeks, and the fourth Monday in June as soon 
as the Court of General Sessions shall have concluded, and shall continue dur- 
ing the remainder of the week, and on the second Monday in December for one 
week. 

(4) Allendale County. — The Courts of General Sessions for the County of 
Allendale, at Allendale, on the third Monday in April, for one week ; on the first 
Monday in July for one week, and on second Monday in November for one week ; 
the Court of Common Pleas for said County of Allendale, at Allendale; on the 
fourth Monday in April for two weeks, and on the second Monday in September 
for one week. 

(5) Jasper County. — The Courts of General Sessions for the County of Jas- 
per at Ridgeland, South Carolina, on the fourth Monday in February for one 
week; the third Monday in May for two weeks; the third Monday in June for 
one week, and the third Monday in November for one week. The Courts of Com- 
mon Pleas for said County shall convene as soon as the Courts of General Ses- 
sions shall have concluded, except that during the week commencing the third 
Monday in November, there shall be no regular term of the Court of Common 
Pleas. There shall also be terms of the Court of Common Pleas for said County 
on the second Monday in May for one week, and the first Monday in December 
for one week. 

Civ. P. '22, § 62; Civ. P. '12, §§ 19, 26; Civ. P. '02, § 19; 1883, XVIII, 462; 1884, XVIII, 
886; 1896, XXII, 20; 1900, XXIII, 310; 1901, XXIII, 624; 1910, XXVI, 542; 1911, 
XXVII, 87; 1912, XXVII, 580, 770; 1913, XXVIII, 19, 31; 1914, XXVIII, 607; 1915, 
XXIX, 79, 198; 1916, XXIX, 700; 1917, XXX, 37, 49; 1920, XXXI, 919; 1925, XXXIV, 
18 ; 1926, XXXIV, 929 ; 1928, XXXV, 1179 ; 1264 ; 1929, XXXVI, 26. 

§ 65. Courts of General Sessions During Terms of Common Pleas. — When- 
ever provision is made by law for holding the Courts of Common Pleas, the pre- 
siding Judge during the time allowed for the Common Pleas, may, on motion of 
the Solicitor, also open the Court of General Sessions without juries, take vol- 
untary pleas, pronounce judgment thereon, and transact all other business of a 
Court of General Sessions, except trials by jury. 

1929, XXXVI, 209. 

§ 66. Courts of Common Pleas and General Sessions. — Whenever in this 
Title provision is made for the Courts of General Sessions only the Judge pre- 
siding shall at the time of opening such Court of General Sessions also open the 
Court of Common Pleas without jurors ; and give judgment by default on Cal- 
endar Three, hear and determine equity cases and transact all other business of a 
regular term of a Court of Common Pleas, except trials by jury. 

Civ. P. '22, § 63; Civ. P. '12, § 30; Civ. P. '02, § 26; 1878, XVI, 703; 1888, XVIII, 586; 
1904, XXIV, 422 ; 1914, XXVIII, 570 ; 1916, XXIX, 700. 

§ 67. Judge's Power to Adjourn Court of Common Pleas. — Should the busi- 
ness before the Court of General Sessions at any term not be completed on the 
arrival of the day fixed by law for the holding of the Court of Common Pleas for 
said county, the Judge presiding may, in his discretion, adjourn said Court of 
Common Pleas until the business of the Court of General Sessions shall have been 



27 Code of Civil Procedure § 68 

concluded. But the provisions of this Section shall not apply to the Courts held 
in the County of Newberry, 

Civ. P. '22, § 64 ; Civ. P. '12, § 31 ; Civ. P. '02, § 27 ; 1870, XIY, § 27 ; 1889, XX, 359. 

§ 68. Power to Open Common Pleas Before Completion of Criminal Busi- 
ness. — Should the business before the Court of General Sessions at any term 
in anj^ circuit in this State be completed or suspended before or after the 
day fixed by law for the opening of the Court of Common Pleas for any county 
in the State, the presiding Judge may, in his discretion, before the completion 
of the criminal business, open the Court of Common Pleas for the trial of all 
causes or the dispatch of all business that may be pending in said Court in which 
the parties interested are ready to be heard. 

Civ. P. '22, § 65 ; Civ. P. '12, § 32 ; Civ. P. '02, § 27a ; 1883, XVIII, 346. 

§ 69. Special Sessions of Circuit Courts. — Special Sessions of the Courts of 
Common Pleas or General Sessions may be held whenever so ordered, either by 
the Chief Justice or by the Circuit Judge at the time holding the Circuit Court 
of the county for which the extra term may be ordered, of which extra term such 
notice shall be given as the Chief Justice or the Circuit Judge so ordering the 
same may direct. If such extra term of either or both the Courts aforesaid be 
ordered by the Chief Justice, he may order any one of the Circuit Judges to hold 
the same ; but if such extra term be ordered by a Circuit Judge, as hereinbefore 
provided, then such extra term shall be held only by the Circuit Judge so order- 
ing the same. No cause shall be tried at any extra term of the Court of Common 
Pleas for any circuit unless the said cause shall have been previously docketed 
upon some one of the calendars of the last preceding regular term of said Court. 

The Clerk of such Court shall, at least fifteen days before the commencement 
of such special session, cause the time and place for holding the same to be noti- 
fied, for at least two weeks successively, in one or more of the newspapers pub- 
lished nearest the place where the session is to be holden. All processes, writs 
and recognizances of every kind, whether respecting juries, witnesses, bail, or 
otherwise, which relate to the cases to be tried at the said special session, shall 
be considered as belonging to such session in the same manner as if they had been 
issued or taken in reference thereto. All business depending for trial at any 
special session shall at the close thereof be considered as of course removed to 
the next stated term of Court. Said special session shall be held in pursuance of 
an order which shall be transmitted to the Clerk of the Court, and by him en- 
tered on the records of the Court. 

Civ. P. '22, § 66 ; Civ. P. '12, § 33 ; Civ. P. '02, § 28 ; 1873, XIV, § 28 ; 1878, XVI, 395, 
§ 3 ; 1884, XVIII, 770. 

§ 70. Petit Jurors in Common Pleas and General Sessions. — Petit jurors 
summoned to attend the Court of General Sessions in any couutj^ except the 
County of Charleston, shall also attend and serve as jurors for the Court of 
Common Pleas next ensuing in and for said county, except as otherwise pro- 
vided in Section (565) of this Code of Procedure. 

Civ. P. '22, § 67 ; Civ. P. '12, § 34 ; Civ. P. '02, § 29 ; 1870, XVI, § 29. 

§ 71. Adjournment of Circuit Courts. — The Judge of the Circuit Court 
shall have power to direct any Circuit Court in this circuit to be adjourned over 
to a future day designated in a written order to the Clerk of said Court, when- 
ever there is a dangerous and general disease at the place where said Court is 
usually holden. 

Civ. P. '22, § 68 ; Civ. P. '12, § 35 ; Civ. P. '02, § 30 ; 1870, XYI, § 30. 



§ 72 



Code of Civil Procedure 



28 



§ 72. Before Whom Circuit Judge May Qualify. — The Circuit Judges of 

this State, upon their election, shall qualify by taking the oaths required by the 

Constitution of this State before a Justice of the Supreme Court, a Circuit Judge, 

a Clerk of the Supreme Court, or a Clerk of the Court of Common Pleas, or a 

Probate Judge of the county, and shall forthwith enter upon their duties; and 

said oaths must be filed in the office of the Secretary of State. 

Civ. P. '22, § 69 ; Civ. P. '12, § 36 ; Civ. P. '02, § 31 ; 1870, XVI, § 31 ; XVII, 502 ; 1898, 
XXII, 688. 

§ 73. Circuit Courts Made Courts of Record. — The Circuit Courts herein 
established shall be Courts of Kecord, and the books of record thereof shall, at 
all times, be subject to the inspection of any person interested therein. 

Civ. P. '22, § 70 ; Civ. P.'12, § 37 ; Civ. P. '02, § 32 ; 1870, XIV, § 32. 

§ 74. Clerk and Deputy Clerk of Circuit Court. — The Clerk elected in each 
county pursuant to Section 27 of Article V of the Constitution shall be Clerk 
of the Courts of General Sessions and Common Pleas, and may appoint a deputy, 
who may perform the duties of Clerk, for whose acts such Clerk shall be respon- 
sible, and a record of whose appointment shall be made' in the Clerk's office, and 
such appointment may be revoked at the pleasure of the Clerk ; and in case no 
Clerk exists, the Judge shall have authority to appoint a person who shall per- 
form the duties of Clerk, and said Deputy Clerk, or the one appointed by the 
Judge, shall be required to give the usual bond before entering on the duties of 
the office. 

Civ. P. '22, § 71 ; Civ. P. '12, § 38 ; Civ. P. '02, § 33 ; 1870, XVI, § 33. 



Article 1. 
Article 2. 
Article 3, 
Article 4. 
Article 5. 
Article 6. 



CHAPTER 3. 

County Courts. 

General Provisions, § 75. 
Civil Court of Florence, § 102, 
County Court of Greenville, § 117. 
County Court of Orangeburg, § 141. 
County Court of Richland, § 164. 
County Court of Spartanburg, § 181A. 



ARTICLE 1 

General Provisions 



89-96-7. Solicitor. 

90. Clerk. 

91. Sheriff. 

92. Bailiffs. 

93. Compensation of Jurors and Witnesses. 
94-5. Magistrates. 

98-9. Judge and Solicitor. 

100. Stenographer. 

101. Counties Excepted. 



75-6. Establishment. 

77. Jurisdiction. 

78. A Court of Record. 

79. Pleading and Practice. 

80. Laws Applicable. 

81. Appeals. 
82-3 & 88. Jurors. 
84—5. County Judge. 

86. Terms. 

87. Grand Jury. 

§ 75. County Courts — How They May Be Established — Petition — Election. 

Whenever one-third of the qualified registered electors of any county in this 
State shall file a petition with the Clerk of the Circuit of such county, praying 
for an election to be held in such county on the question of the establishment of 
a County Court therein, it shall be the duty of the said Clerk within ten days 
to make an order thereon, and serve the same on the Commissioners of Elec- 



29 Code of Civil Procedure § 76 

tion, requiring the said Commissioners of Election of such county to hold an 
election, after first giving at least thirty days' notice thereof in the newspapers of 
such county, upon the question of establishing a County Court in such county, 
not later than sixty days nor earlier than forty days thereafter. Said petition 
shall be accompanied by a certificate of the Board of Supervisors of Registra- 
tion that the names appearing upon said petition constitute one-third of the 
qualified registered electors of such county : Provided, That an election on said 
question shall not be had in any county of tener than once in four years ; that at 
such election the question of the establishment of such County Court shall be 
submitted to the electors in this form : ' ' Shall a County Court be established for 

the County of ? " inserting the name of the county in which the 

electors voting are resident, and upon this question the electors shall vote ' ' Yes ' ' 
or "No." 

Civ. P. '22, § 72 ; Civ. '12, § 3847 ; Civ. '02, § 2750 ; 1900, XXIII, 322. 

§ 76. Established on a Majority Vote of the County. — In the event a ma- 
jority of the qualified electors voting at such election in any one or more of the 
counties of the State shall vote "Yes" upon such question, then such County 
Court shall be, and hereby is, established in and for each of the counties in 
which a majority of the qualified electors so vote, with such jurisdiction and 
powers as is hereinafter provided. 

Civ. P. '22. § 73 ; Civ. '12, § 3848 ; Civ. '02, § 2751 ; 1900, XXIII, 322. 

§ 77. Jurisdiction in Criminal and Civil Cases. — The said County Court 
shall have jurisdiction to try and determine all criminal cases, except cases 
for murder, manslaughter, rape and attempt to rape, arson, common law 
burglary, bribery and perjury. The said Court shall likewise have jurisdic- 
tion to try and determine all civil cases and special proceedings, both at law 
and in equity, where the value of the property in controversy or the amount 
claimed does not exceed one thousand dollars, and shall likewise hear and de- 
termine appeals taken from judgments rendered by Magistrates : Provided, 
That the County Court shall not have jurisdiction to try any action involving the 
title to real estate. 

Civ. P. '22, § 74 ; Civ. '12, § 3849 ; Civ. '02, § 2752 ; 1900, XXIII, 322. 

§ 78. Shall Be a Court of Record. — The said County Court shall be a Court 
of Record, and the same presumption in favor of its jurisdiction and the val- 
idity of its judgments shall be indulged as in the case of judgments rendered 
by the Circuit Court. 

Civ. P. '22, § 75; Civ. '12, § 3850, Civ. '02, § 2753; 1900, XXIII, 322. 

§ 79. Forms of Pleading and Practice in to Be Same as in Circuit Court. — 

The same form of pleading and the same rules of procedure, practice and evi- 
dence shall obtain in the said County Court as is provided by law for the con- 
duct and trial of cases, civil and criminal, in the Circuit Courts : Provided, In 
all criminal cases wherein the punishment does not exceed a fine of one hun- 
dred dollars and imprisonment for thirty days, the same shall be tried without 
presentment by a grand jury on information filed by the County Solicitor. 
Civ. P. '22, § 76 ; Civ. '12, § 3851 ; Civ. '02, § 2754 ; 1900, XXIII, 322. 

§ 80. General Laws Applying to County Courts. — All general laws and 
statutory provisions applying generally to the Circuit Courts of this State and 
trials of causes therein shall apply to the said County Court, and the conduct 
and trial of causes therein, where not inconsistent with any of the provisions 
of this Chapter. 

Civ. P. '22, § 77; Civ. '12, § 3852; Civ. '02, § 2755; 1900, XXIII, 322. 



§ 81 Code of Civil Procedure 30 

§ 81. Appeals from Judgments. — The right of appeal shall exist from the 
judgment of the said County Court to the Circuit Court: Provided, That on 
appeal to the Circuit Court the same shall be heard by the presiding Judge 
without a jury, as in case of appeals from Courts of Magistrates, and all of 
the rules, practice and procedure now governing appeals from the said Courts 
of Magistrates shall apply to appeals from the County Court to the Circuit 
Court, and the Circuit Court shall have the same power in passing upon and 
deciding the same as now possessed in passing upon and deciding appeals from 
the Courts of Magistrates : Provided, further, That in all appeals taken from 
the judgment of the County Court to the Circuit Court, the Stenographer of 
the County Court shall make in writing a transcript of the testimony and 
oher proceedings had in the cause in the County Court, certified by the County 
Judge, and lodge the same with the Clerk of the Circuit Court at least fifteen 
days before the next term of the said Circuit Court, upon being paid by the 
party so appealing three cents per hundred words for the said transcript. In 
case of the failure or refusal of the party so appealing to pay for the said 
transcript, such appeal shall be dismissed by the Circuit Court as for want of 
prosecution; Provided, If the party appealing makes it appear by affidavit 
that he is not able to pay for such transcript of the testimony, then the steno- 
grapher shall furnish the same free of charge : Provided, That in no case shall 
the stenographer's fee exceed ten dollars. In case the attorneys for the ap- 
pellant and respondent shall agree upon a statement of the case as prepared 
by them for the hearing before the Circuit Court, such statement of the case 
shall be a sufficient return from the County Court, and no transcript or other 
paper from the County Court shall be necessary. 

Civ. P. '22, § 78 ; Civ. '12, § 38.53 ; Civ. '02, § 2756 ; 1900, XXIII, 322. 

§ 82. Rights of Challenge of Jurors in County Courts. — In the selection of 
a jury for the trial of criminal cases in said County Court, the accused, when 
charged with a misdemeanor, shall be entitled to peremptory challenges not 
exceeding three, and the State two ; and in the trial of cases of felony, the ac- 
cused shall be entitled to peremptory challenges not exceeding five, and the 
State three. In cases where there are two or more persons jointly indicted 
and so tried, the accused shall be jointly entitled to six peremptory challenges 
in cases of misdemeanor and eight peremptory challenges in cases of felony, 
and no more. 

Civ. P. '22, § 79 ; Civ. '12, § 3854 ; Civ. '02, § 2757 ; 1900, XXIII, 322. 

§ 83. Petit Jury to Consist of Six Persons — Trial Without a Jury. — Where 
a jury is required by law in the trial of causes, civil and criminal, in said Court, 
such jury shall consist of six persons. All criminal cases wherein the punish- 
ment does not exceed a fine of one hundred dollars or imprisonment for thirty 
days shall be tried before the County Judge without a jury, unless a trial by 
jury is demanded by the accused. Such cases wherein a trial by jury is not so 
demanded shall be carried to the foot of the calendar, to await trial by the 
County Judge after the jury cases for the term have been disposed of. 

Civ. P. '22, § 80 ; Civ. '12, § 3855 ; Civ. '02, § 2758 ; 1900, ' XXIII, 322. 

§ 84. County Judge— How Elected— Term of Office, Etc.— At the next 
ensuing general election the qualified electors of each of the counties in which 
a majority of the said electors shall have voted for the establishment of said 
County Court, shall elect a resident attorney at law thereof as County Judge. 
Such County Judge shall be the presiding Judge of the County Court, and shall 
hold his office for four years and until his successor has been elected and has 



31 Code of Civil Procedure § 85 

qualified. The said County Judge, before entering upon the duties of his office, 
shall take the same oath of office as that required by law of Circuit Judges, and 
shall be commissioned in the same manner as Circuit Judges. 

Civ. P. '22, § 81 ; Civ. '12, § 3856 ; Civ. '02, § 2759 ; 1900, XXIII, 322. 

§ 85. Jurisdiction of County Judge. — As to all cases and special proceed- 
ings within the jurisdiction of the County Court and pending therein, the Coun- 
ty Judge of the county shall have the same jurisdiction with reference thereto, 
both in open Court and at Chambers, as is possessed by Circuit Judges over 
cases pending in the Circuit Courts over which they are presiding or in the 
Circuits in which they are resident. 

Civ. P. '22, § 82 ; Civ. '12, § 3857 ; Civ. '02, § 2760 ; 1900, XXIII, 322. 

§ 86. Terms of Court. — The said County Court shall hold its first term 
on the first Monday in the calendar month next succeeding the election and 
qualification of said County Judge, and hold a term beginning on the first 
Monday in every alternate month thereafter: Provided, Should the time at 
which any term of said Court is fixed conflict with the time of holding the Cir- 
cuit Court for such county, then the term of the County Court shall begin on 
the Monday succeeding the time for the final adjournment of the Circuit Court. 
The said County Court shall continue in session at each of its said terms until 
the business before it has been disposed of; and shall be open for the trial of 
cases, civil and criminal, from the beginning to the end of each of its said terms. 

Civ. P. '22, § 83 ; Civ. '12, § 3858 ; Civ. '02, § 2761 ; 1900, XXIII, 322. 

§ 87. Grand Jury for County Court. — The Grand Jury as drawn in ac- 
cordance with law for service upon the Court of General Sessions in each of 
the said counties shall constitute the Grand Jury for the said County Court, 
and shall meet with the said County Court at each of its terms, except the term 
next succeeding each session of the Circuit Court, at which term the Grand 
Jury need not meet with the County Court. 

Civ. P. '22, § 84 ; Civ. '12, § 3859 ; Civ. '02, § 2762 ; 1900, XXIII, 322. 

§ 88. How Jurors Shall Be Drawn. — The Board of Jury Commissioners as 
constituted by law in each of the counties of the State for the drawing of jurors 
for the Circuit Courts shall constitute the Board of Jury Commissioners for the 
drawing of jurors to attend upon the sessions of the County Court, and the law 
relating to the qualifications, drawing and summoning of jurors for attendance 
upon the Circuit Courts shall apply to the qualifications, drawing and summon- 
ing of jurors for the County Court : Provided, That not more than eighteen per- 
sons shall be drawn and summoned to attend at the same time at any session 
of the County Court unless the Court shall otherwise order. Jurors drawn and 
summoned shall appear and attend upon the sessions of the said County Court 
for which summoned until excused or discharged by the Judge presiding : 
Provided, That service as a juror in the County Court shall not be held to 
exempt the juror from service as such in the Circuit Court in the same year. 

Civ. P. '22, § 85; Civ. '12, § 3860; Civ. '02, § 2763; 1900, XXIII, 322. 

§ 89. Duty of the County Solicitor. — -It shall be the duty of the County 
Solicitor to prepare and, through the presiding Judge of the Court of General 
Sessions, submit to the Grand Jury, while in attendance upon the Court of 
General Sessions, bills of indictment in all cases pending in the County Court 
where the punishment exceeds a fine of one hundred dollars or imprisonment for 
thirty days, and have not been previously acted on by the Grand Jury; and 
the Grand Jury shall act thereon, and report the same to the presiding Judge, 



§ 90 Code of Civil Proceduee 32 

and the said Judge shall direct the Clerk of the Court of General Sessions to 
report the same to the presiding Judge of the County Court at its next ensuing 
term. All eases in which bills of indictment are so found shall stand for trial 
by the County Court as though found by the Grand Jury while in attendance 
upon the County Court. 

Civ. P. '22, § 86 ; Civ. '12, § 3861 ; Civ. '02, § 2764 ; 1900, XXIII, 322. 

§ 90. Clerk of Circuit Court Ex Officio Clerk of County Court.— The Clerk 
of the Circuit Court shall be ex officio Clerk of the County Court, and shall Keep 
such calendars, minutes and records of the said County Court, and the causes 
therein pending, and attend and perform such duties as the Clerk thereof, as is 
required of him by law as Clerk of the Circuit Court. For services performed as 
Clerk of the County Court he shall receive the same compensation as if per- 
formed by him as Clerk of the Circuit Court. 

Civ. P. '22, § 87 ; Civ. '12, § 3862 ; Civ. '02, § 2765 ; 1900, XXIII, 322. 

§ 91. Duty of Sheriff. — The Sheriff of the county shall attend upon all ses- 
sions of the said County Court, and shall be subject to the orders thereof, and 
shall execute the orders, writs and mandates of the said County Court as required 
by law of him with reference to the Circuit Court. For all such service he shall 
receive the same compensation as is allowed by law for similar services in the 
Circuit Court: Provided, That for serving each venire for the County Court, 
the Sheriff shall receive the sum of ten dollars. 

Civ. P. '22, § 88 ; Civ. '12, § 3863 ; Civ. '02, § 2766 ; 1900, XXIII, 322. 

§ 92. Bailiffs — How Appointed and Compensation. — The presiding Judge 
of the said County Court may appoint a sufficient number of bailiffs, not ex- 
ceeding three, to attend upon the said Court, and be subject to the orders there- 
of. Such bailiffs shall receive as compensation for their services one dollar per 
day for the time actually engaged, and shall not be retained in attendance upon 
the Court longer than the exigencies of the business of the Court shall require. 

Civ. P. '22, § 89 ; Civ. '12, § 3864 ; Civ. '02, § 2767 ; 1900, XXIII, 322. 

§ 93. Compensation of Jurors and Witnesses. — Grand and petit jurors in 
attendance upon the sessions of the said County Court shall receive as a com- 
pensation for their services one dollar per day, and five cents per mile for 
necessary travel in going to and returning from the county seat. Witnesses in 
attendance upon the said County Court shall receive the same compensation as 
witnesses in attendance upon the Circuit Court. 

Civ. P. '22, § 90 ; Civ. '12, § 3865 ; Civ. '02, § 2768 ; 1900, XXIII, 322. 

§ 94. Criminal Jurisdiction and Duties of Magistrates in Counties Where 
County Courts are Established. — ^The jurisdiction of Magistrates in criminal 
cases in all counties wherein said County Court shall be established is hereby 
abolished : Provided, It shall be the duty of said Magistrates, and they shall 
have the power, to issue warrants and hold preliminary examinations in all 
criminal cases, and take such action therein as is now provided by law in crim- 
inal cases beyond their jurisdiction; in committing or binding over defendants 
and witnesses, it shall be the duty of said Magistrates to commit and bind over 
for trial at the next ensuing session of the County Court — except in those cases 
over which the County Court has no jurisdiction, in which case the said Magis- 
trates shall commit or bind over for trial in the Court of General Sessions : 
Provided, further. It shall be the duty of said Magistrates, in binding over wit- 
nesses, to appear and testify, on behalf of the State, before the County Court in 
cases wherein the punishment exceeds a fine of one hundred dollars or imprison- 



33 Code op Civil Procedure § 95 

ment for thirty days, to insert a provision in the recognizance requiring said 
witnesses to appear and testify in said case before the grand jury at the next 
ensuing term of the Circuit Court, when the said next ensuing term of the Cir- 
cuit Court is appointed by law to be held before a term of the County Court ; 
it shall be the duty of said Magistrates, immediately after committing or bind- 
ing over a defendant for trial, to lodge with the Clerk of the Court by which 
the said defendant is to be tried, all papers and proceedings connected with the 
said case : Provided, That the Circuit Solicitor shall have the power to direct 
what cases may be tried before the Court of Sessions in all cases when the said 
Court has concurrent jurisdiction with the County Court. 

Civ. P. '22, § 91 ; Civ. '12, § 3866 ; Civ. '02, § 2769 ; 1900, XXIII, 322. 

§ 95. Civil Jurisdiction of Magistrates in Counties Where County Courts 
Are Established. — The jurisdiction of Magistrates in civil cases and special 
proceedings in all counties wherein said County Court shall be established is 
hereby limited to cases and proceedings wherein the value of the property in 
controversy or the amount claimed does not exceed twenty-five dollars. 

Civ. P. '22, § 92 ; Civ. '12, § 3867 ; Civ. '02, § 2770 ; 1900, XXIII, 322. 

§ 96. County Solicitor — How Appointed — Term of Office, Etc. — It shall be 
the duty of the Governor, upon the recommendation of the members of the Gen- 
eral Assembly from each of the counties where said County Court has been es- 
tablished, to appoint for each of said counties a resident attorney at law as 
County Solicitor, whose term of office shall continue until his successor shall 
have been elected by the qualified electors of the county at the next succeeding 
general election, and until his said successor qualifies. After the first term here- 
in provided for, the term of the County Solicitor shall be for four years, and 
until the election and qualification of a successor, the qualified electors electing 
such successor at the general election occuring every four years. 

Civ. P. '22, § 93 ; Civ. '12, § 3868 ; Civ. '02, § 2771 ; 1900, XXIII, 322. 

§ 97. Duties of County Solicitor. — The said County Solicitor shall repre- 
sent the State in all cases brought before the said County Court wherein the 
State is a party, and shall have the same powers and perform the same duties 
with reference thereto as a Circuit Solicitor with reference to cases brought 
before the Court of General Sessions. He shall also attend all inquests held by 
the Coroner, aid in procuring evidence, and represent the State in the examina- 
tion of witnesses at such inquests; and he shall ex officio be the legal ad- 
viser of the County Board of Commissioners without extra compensation. 

Civ. P. '22, § 94 ; Civ. '12, § 3869 ; Civ. '02, § 2772 ; 1900, XXIII, 322. 

§ 98. Salaries of Judges and Solicitors of County Courts. — The said Coun- 
ty Judge shall receive as a compensation for his services the sum of one thou- 
sand dollars per annum, and the said County Solicitor the sum of three hun- 
dred dollars per annum, to be paid by the county. 

Civ. P. '22, § 95 ; Civ. '12, § 3870 ; Civ. '02, § 2773 ; 1900, XXIII, 322. 

§ 99. Judge and Solicitor Prohibited Practicing in Cause of Which County 
Court Has Jurisdiction. — The said County Judge and County Solicitor are 
prohibited from practicing as attorneys at law in any cause or matter of which 
the said County Court has jurisdiction, or may acquire jurisdiction, and upon 
conviction of any willful violation of this Section, the offender shall be ad- 
judged to have forfeited his office and shall be sentenced to pay a fine of not less 
than two hundred nor more than five hundred dollars, and be imprisoned for a 
period of not less than one month nor more than six months : Provided, The said 



§ 100 Code of Civil Procedure 34 

County Solicitor shall be at liberty to practice in all causes and matters on the 
civil side of said Court. 

Civ. P. '22, § 96 ; Civ. '12, § 3871 ; Civ. '02, § 2774 ; 1900, XXIII, 322. 

§ 100. Judge Shall Appoint a Stenographer — Salary of, Etc. — The County 
Judge in each of the counties wherein the said County Court is established shall 
appoint for the said County Court an official stenographer, who shall attend 
upon the sessions of the said Court and perform the same duties in connection 
therewith as are performed by Circuit Stenographers in the Circuit Courts. 
The said stenographer shall receive from the county wherein he is appointed a 
salary of three hundred dollars per year. 

Civ. P. '22, § 97 ; Civ. '12, § 3872 ; Civ. '02, § 2775 ; 1900, XXIII, 322. 

§ 101. Counties Excepted from Provisions of Chapter. — The provisions of 
this Chapter shall not apply to the Counties of Abbeville, Anderson, Bamberg, 
Beaufort, Berkeley, Charleston, Chester, Chesterfield, Clarendon, Cherokee, 
Dorchester, Edgefield, Fairfield, Florence, Greenwood, Georgetown, Horry, 
Marion, Lancaster, Laurens, Lexington, Marlboro, Orangeburg, Oconee, Pickens, 
Saluda, Sumter, Union, Williamsburg, Kershaw, Barnwell, Spartanburg, Green- 
ville and York. 

Civ. P. '22, § 98 ; Civ. '12, § 3873 ; Civ. '02, § 2776 ; 1900, XXIII, 322. 



ARTICLE 2. 
Civil CoTirt of Florence 

102-3. Jurisdiction. 111. Bailiffs. 

104-5, 112. Jurors. 112. Witnesses. 

106-7. Judge. 113. Pleading and Practice. 

108. Stenographer. 114. Sessions. 

109. Clerk. 115, 117. Appeals. 

110. Sheriff. 116. Transfer of Causes. 

§ 102. "Civil Court of Florence" — Territorial Jurisdiction. — A Court in- 
ferior to the Circuit Court, and to be known as "The Civil Court of Flor- 
ence," is hereby established for the City of Florence and the following terri- 
tory adjacent thereto, in the County of Florence, to wit : The Townships of 
Florence, Black Swamp, Jefferies, McMillian, Cain, Pee Dee, Lake, Lee, Lake 
City, Motts, Lynch, Effingham, James Cross Roads, Cartersville, Timmonsville, 
Ebenezer and Tans Bay. 

1929, XXXVI, 119. 

§ 103. Jurisdiction. — The said Civil Court shall have jurisdiction to try 
and determine all civil cases and special proceedings, both at law and in equity, 
where the value of the property in controversy, or the amount claimed, does 
not exceed the sum of Two Thousand ($2,000.00) Dollars, but such jurisdiction 
shall not extend to cases where the title to real estate is in question. The jurisdic- 
tion of said Court within the limits above defined shall extend to all cases which 
may be brought by or against any residents or citizens who may reside within 
the County of Florence, but without the territorial limits of the jurisdiction of 
said Court, as above defined, provided such person or persons against whom 
actions may be brought shall consent thereto : Provided, further, That no suit 
shall be brought, commenced or filed in said Court unless and until the plaintiff 
shall have made a deposit with the Clerk of said Court to prepay the costs of 
the action, the minimum of which deposit shall be five dollars. 

1929, XXXVI, 119. 



35 Code of Civil Procedure § 104 

§ 104. Jurors. — The Board of Jury Commissioners as constituted by law in 
the County of Florence for the drawing of jurors for the Circuit Courts shall 
constitute the Board of Jury Commissioners for the drawing of jurors for the 
said Civil Court and the law relating to the qualifications, drawing and sum- 
moning of jurors for attendance upon the Circuit Courts shall apply to the 
qualifications, drawing and summoning of jurors for the said Civil Court, pro- 
vided that no more than twenty persons shall be drawn and summoned to ap- 
pear at the same time at any session of the Civil Court unless the Court shall 
otherwise order. The jurors drawn and summoned shall appear and attend 
the sessions of the said Court until excused or discharged by the Judge pre- 
siding: Provided, That service as a juror in said Court shall be held to exempt 
a juror from service as such in the said Civil Court or in the Circuit Court for 
the same year. 

1929, XXXVI, 119. 

§ 105. Number on Jury. — Juries in the said Civil Court shall consist of six 
persons. 

1929, XXXVI, 119. 

§ 106. Judge. — There shall be a Judge of said Civil Court who shall be an 
attorney, resident within the jurisdictional limits thereof, with at least five 
years' actual experience in the practice of law, and who shall be commissioned 
by the Governor, upon the recommendation of the majority of the members of 
the Bar residing within said jurisdictional limits, said commission to become 
effective upon confirmation by the Senate. He shall hold office for four years and 
until his successor has been appointed and has qualified. Said Judge, before 
entering upon the duties of his office, shall take the same oath of office as re- 
quired by law of Circuit Judges and shall be commissioned in the same manner 
as Circuit Judges. He shall receive as compensation the sum of Thirty-six Hun- 
dred ($3,600.00) Dollars per annum, to be paid in monthly installments by the 
County Treasurer upon the warrant of the Board of County Commissioners. 
The said Judge shall be debarred from practice of law in all matters within the 
jurisdiction of said Civil Court. 

1929, XXXVI, 119. 

§ 107. Powers of Judge. — As to all cases and special proceedings within 
the jurisdiction of the said Civil Court and pending therein, the said Judge 
shall have the same jurisdiction with reference thereto both in open Court and 
at Chambers, as is possessed by Circuit Judges over cases pending in the Cir- 
cuit Courts, over which they are presiding, or in the Circuit in which they are 
resident, and said Judge shall have the power to grant writs of injunction and 
habeas corpus, and shall also have the power to punish any person or persons 
guilty of any act in contempt of the said Court. 

1929, XXXVI, 119. 

§ 108. Stenographer. — There shall be an official stenographer of the said 
Court, who shall be appointed by the Judge thereof and who shall hold office 
during the pleasure of said Judge. He shall receive as compensation the sum of 
Fifteen Hundred ($1,500.00) Dollars per annum. He shall, upon request of any 
parties litigant furnish transcripts, for which he iShall be allowed to charge the 
party furnished same a fee of twenty-five cents per one hundred words, which 
fee shall be paid by the party so furnished and which shall be considered a 
necessary disbursement in the taxation of costs. 

1929, XXXVI, 119. 



§ 109 Code of Civil Proceduke 36 

§ 109. Clerk — Records — Judgments. — The Clerk of the Circuit Court shall 
be ex officio Clerk of the said Civil Court and shall keep such calendars, min- 
utes and records of the said Civil Court and the causes pending therein, and 
attend and perform such duties as Clerk thereof, as is required of him by law as 
Clerk of the Circuit Court. Judgments recovered in the Civil Court shall be 
entered of record and recorded in the same books as judgments of the Circuit 
Court. The Clerk shall make up, before each term of Court, a jury issue docket, 
on which shall be placed all matters to be tried before a jury, that are at issue, 
under the pleadings, at least seven days before the commencement of the term. 
All cases shall be tried in their order on the docket unless changed or varied by 
the Court for its convenience, and in the furtherance of justice. For services 
performed as Clerk of said Civil Court the Clerk shall receive such fees in civil 
matters as are now allowed him by law. 

1929, XXXVI, 119. 

§ 110. Sheriff. — The Sheriff of the County shall attend upon all sessions 
of the said Civil Court, and shall be subject to the orders thereof, and shall 
execute the orders, writs and mandates of the said Civil Court as is required of 
him with reference to the Circuit Court. For all such services he shall receive the 
same compensation allowed by law for similar service in the Circuit Court : 
Provided, That for serving each venire in the Civil Court he shall be allowed the 
sum of Thirty ($30.00) Dollars. 

1929, XXXVI, 119. 

§ 111. Bailiffs. — The presiding Judge of the said Civil Court may appoint 
a sufficient number of Bailiffs, not exceeding two, to attend upon the said Court 
and execute the orders thereof. Such Bailiffs shall receive as compensation the 
sum of Two ($2.00) Dollars per day for the time actually engaged, and shall 
not be retained in attendance upon the Court longer than the exigencies of the 
business of the Court shall require. 

1929, XXXVI, 119. 

§ 112. Compensation of Jurors — of Witnesses. — Jurors in attendance upon 
the sessions of the said Court shall receive the same compensation as jurors m 
attendance upon the Circuit Court. "Witnesses in attendance upon the said Civil 
Court shall likewise receive the same compensation as witnesses in attendance 
upon the sessions of the Circuit Court. 

1929, XXXVI, 119. 

§ 113. Pleadings and Practice. — The same forms of pleading and the same 
rules of practice and evidence shall obtain in the said Civil Court as are pro- 
vided by law for the conduct and trial of civil cases in the Circuit Courts. 

1929, XXXVI, 119. 

§ 114. Sessions.^ — -The said Court shall hold its sessions in the County 
Courthouse, at the County Seat of the County of Florence, the first session to be 
held on the first Monday of the calendar month next succeeding the appointment 
and qualification of the Judge thereof and thereafter a term shall be held begin- 
ning on the first Monday in each and every month. The said Court shall con- 
tinue in session in each of its said terms until the business before it has been 
disposed of, and shall be open for the trial of cases from the beginning to the 
end of each of its said terms. The Judge of the said Court shall maintain open 
Court at all times for the hearing of causes without a jury, provided that dur- 
ing the month of August of each year there shall be no session of said Court held. 

1929, XXXVI, 119. 



37 Code of Civil Procedure § 115 

§ 115. Appeals from Magistrates. — The said Civil Court shall likewise 
have jurisdiction to hear and determine appeals from, all Magistrate's Courts 
within the territorial limits of its jurisdiction. 

1929, XXXVI, 119. 

§ 116. Transfer of Causes. — All cases now pending in the Circuit Court 
of whch the said Civil Court shall have jurisdiction shall be transferred to the 
said Civil Court for trial upon motion by either party thereto. 

1929, XXXVI, 119. 

§ 117. Appeals. — Appeals shall be taken from said Civil Court in all cases 
direct to the Supreme Court and shall be presented in the same manner and 
under the same rules as are now prescribed for appeals from the Circuit Court. 

1929, XXXVI, 119. 



ARTICLE 3. 

County Court of Greenville 

118. Establishment. 129. Judge's Powers. 

119. .Turiscliction. 131. Terms. 

120. 30. Appeals. 132. Jury Commissioners. 

121. Solicitor. 133. Clerk. 

122. A Court of Record. 134. SlierifC. 

123. Transfer of Causes. 135. Witnesses. 

124. Law Applicable. 136. Judge. 

125. Procedure. 137. Bailiffs. 

126. Grand Jury. 138. Stenographer. 
127-8. 135 Jurors. 139. Costs and Fees. 

140. County Commissioners. 

§ 118. County Court in and for Greenville County. — A majority of the 
qualified electors of the County of Greenville having voted at the general election 
of 1920 in favor of the establishment of a County Court in and for said county 
as provided by the Act of the General Assembly approved February 19^ 1920, 
a County Court is established in and for said county in pursuance of the said 
Act of the General Assembly with such jurisdiction as is hereinafter provided. 

Civ. P. '22, § 117 ; 1920, XXXI, 791. 

§ 119. Jurisdiction. — The said County Court shall have concurrent juris- 
diction with the Court of Common Pleas in all civil cases and special proceed- 
ings, both at law and in equity, where the amount demanded in the complaint 
does not exceed three thousand ($3,000.00) dollars, or when the value of the 
property involved does not exceed three thousand ($3,000.00) dollars. That 
said Court shall have exclusive jurisdiction to hear and determine all appeals 
in civil cases from judgments rendered by Magistrates' Courts; and the pro- 
ceedings on such appeal shall be the same as is now provided for appeal from said 
last named Courts to the Courts of Common Pleas and General Sessions. The 
said County Court shall have concurrent jurisdiction with the Court of General 
Sessions and invested with jurisdiction to try all cases except cases of murder, 
manslaughter, rape or attempt to rape, arson, common law burglary, bribery or 
perjury. 

Civ. P. '22, § 118; 1920, XXXI, 792. 

§ 120. Appeals from Inferior Courts. — The said County Court shall have 
jurisdiction to hear and determine appeals in all criminal cases from the Magis- 
trates' Court and from Municipal Courts, or Town Councils of any of the cities 
and towns in Greenville County. 

Civ. P. '22, § 119 ; 1921, XXXII, 332. 



§ 121 Code of Civil Procedure 38 

§ 121. County Solicitor — Election — Term — Compensation. — There shall be 
selected by the Legislative Delegation a County Solicitor from the members of 
the Greenville Bar, to prosecute all criminal cases before the County Court, to 
serve until the next general election, at which time his successor shall be elected 
in the same manner as provided for the county officers. The term of office shall 
be for four years and until his successor shall have been elected and qualified 
and his salary shall be fifteen hundred ($1,500.00) dollars a year, payable 
monthly, by the County Treasurer upon the warrant of such County Solicitor. 

Civ. P. '22, § 120 ; 1921, XXXII, 334. 

§ 122. A Court of Record. — The said County Court shall be a Court of 
Eecord and have a seal inscribed with the words ' ' County Court of Greenville, ' ' 
and the same presumption in favor of its jurisdiction and the validity of its 
judgments and decrees shall hold as in case of judgments rendered by the Cir- 
cuit Court and Courts of General Sessions. 

Civ. P. '22, § 121 ; 1920, XXXI, 792. 

§ 123. Transfer of Causes. — The said County Judge shall have jurisdiction 
to remove to the Court of Common Pleas of said county, any case where it may 
appear to his satisfaction that the case or any part thereof is not within the 
jurisdiction of the County Court, or any case in which the Judge has been of 
counsel, has any personal interest in, or is connected by blood or marriage to, 
any of the parties to the suit. 

Civ. P. '22, § 122 ; 1921, XXXII, 332. 

§ 124, Statutes Governing Circuit Courts Applicable, Unless Inconsistent, 

— All general laws and statutory provisions applicable generally to the Circuit 
Courts and Courts of General Sessions of this State and trial of cases therein 
shall apply to said County Court and to the conduct and trial of cases therein 
where not inconsistent with this Act. 
Civ. P. '22, § 123 ; 1920, XXXI, 792. 

§ 125. Procedure. — The same form of pleadings and the same rules of pro- 
cedure, practice and evidence shall obtain in the County Court as is provided 
by law for the trial of civil and criminal cases in the Circuit Court and Courts 
of General Sessions where not inconsistent with the provisions of this Section: 
Provided, That the pleadings or copies thereof in cases for trial before the said 
Court shall be filed in the Clerk 's office, as now provided by law for the Circuit 
Court, before six o 'clock in the afternoon of the "Wednesday preceding the first 
day of the next ensuing term of the said County Court, and the Clerk shall forth- 
with enter the cases upon the appropriate calendar. 

Civ. P. '22, § 124; 1920, XXXI, 793. 

§ 126. Attendance of Grand Jury — Indictments. — The Grand Jury, as 
drawn in accordance with law for service upon the Court of General Sessions, 
for Greenville County, shall constitute the Grand Jury for the said County 
Court, and need not meet with the said County Court, except when ordered 
to do so by the County Judge. The Solicitor of the 13th Judicial Circuit, or the 
County Solicitor, if one is provided for by law, shall prepare all bills of indict- 
ment wherein a person is entitled to a presentment of a Grand Jury, and he 
shall present said indictments to the Grand Jury, of such cases as the County 
Court has jurisdiction, at each session of the Court of General Sessions to certify 
said bills of indictments to the County Court for trial or disposition thereof 
where true bills are found by the said Grand Jury. That the County Judge shall 
have the authority to submit to the Grand Jury, when called into his Court, such 



39 Code of Civil Procedure § 127 

bills of indictment as he may desire to submit to them, when the offenses charged 
are within the jurisdiction of said County Court. 

Civ. P. '22, § 125 ; 1921, XXXII, 332. 

§ 127. Juries — Jury Trials. — Where a jury is required by law in the trial 
of all civil and criminal cases in said Court, said jury shall consist of six per- 
sons. In all actions either party may demand a jury trial in all cases in which a 
trial by jury is granted of right under the Constitution and laws of this State, 
but such demand must be made on or before the case is called for trial, and the 
failure to make such demand shall be a waiver of said right of trial by jury. 

Civ. P. '22, § 126; 1920, XXXI, 793. 

§ 128. Drawing of Juries — Challenges. — The empaneling of juries in all 
criminal cases in said Court shall be according to the practice now established 
in the Courts of General Sessions. That in the selection of a jury for the trial of 
criminal cases in said County Court the accused, when charged with misde- 
meanor, shall be entitled to peremptory challenges not exceeding three, and the 
State two, and in the trial of cases of felony the accused shall be entitled to 
peremptory challenges not exceeding five and the State three. In cases where 
there are two or more persons jointly indicted and so tried, the accused shall 
be jointly entitled to four peremptory challenges in cases of misdemeanors and 
the State two, and in each case of felony, the defendant jointly shall be entitled 
to six peremptory challenges and the State four. That the empaneling of juries 
in all civil cases in which a jury shall be charged with the trial of any issue shall 
be according to the practice now established in the Court of Common Pleas, ex- 
cept the list of jurors now required by law to be furnished shall consist of ten, 
from which list each party shall alternately strike until there remain but six, 
which shall constitute the jury to try the case or issue. 

Civ. P. '22, § 127 ; 1921, XXXII, 332. 

§ 129. Powers of Judge. — In all cases and special proceedings within the 
jurisdiction of the County Court and pending therein the Judge of the County 
Court shall have the same jurisdiction both in open Court and at chambers, as is 
possessed by Circuit Judges over cases pending in the Circuit Court over which 
they are presiding, or in the Circuits in which they are residents : Provided, That 
said County Judge shall have the power to issue writs of habeas corpus in all 
cases and to grant bail, except in capital cases. 

Civ. P. '22, § 128; 1920, XXXI, 793. 

§ 130. Appeals. — In all criminal and civil actions and special proceedings 
of which said County Court shall have jurisdiction, the right of appeal shall 
be to the Supreme Court of the State, in the same manner and pursuant to the 
same rules, practice and procedure as now governs appeals from Circuit Courts 
and Courts of General Sessions. 

Civ. P. '22, § 129 ; 1920, XXXI, 793. 

§ 131. Terms. — The terms of the County Court of Greenville County shall 
be as follows : Criminal Court on the fourth Monday in January, for two weeks ; 
on the fourth Monday in April, for two weeks ; on the fourth Monday in June, 
for two weeks, and on the fourth Monday in September, for two weeks. Civil 
Court : On the fourth Monday in February, for two weeks ; on the fourth Mon- 
day in May, for two weeks ; on the second Monday in October, for two weeks, 
and on the first Monday in December, for two weeks ; Provided, That said Court 
shall always be open for the transaction of such civil business as can be dis- 
posed of without jury. The Judge of the County Court of Greenville County in 



§132 Code of Civil Peocedure 40 

addition to the terms of Court now provided by law, shall have authority to call 
special or extra sessions of either Civil or Criminal Court in said County. 
Civ. P. '22, § 130 ; 1920, XXXI, 793, XXXIII, 62 ; 1929, XXXVI, 848. 

§ 132. Jury Commissioners — Venires. — The Board of Jury Commissioners, 
as constituted by law in said county for the drawing of the jurors for the Cir- 
cuit Court, shall constitute the Board of Jury Commissioners for the drawing of 
jurors to attend upon the sessions of the County Court, and such Commissioners 
shall, upon the order of said Court, at such time as shall be fixed, from the jury 
box (whether the same has been previously drawn or not) draw a panel of petit 
jurors, and the Clerk of said Court shall immediately issue to the Sheriff a 
venire containing the names of the persons thus drawn as petit jurors, which 
venire shall be returnable at such time as may be named by the said Court, and 
the persons so served shall be the jurors for said Court, and the law relating to 
the qualifications, drawing and summoning of jurors of the Circuit Court and 
Courts of General Sessions shall apply, except as is herein otherwise provided : 
Provided, That not more than eighteen persons shall.be drawn and summoned 
to attend at the same time at any session of the County Court, unless the Court 
shall otherwise order. Jurors drawn and summoned shall appear and attend 
upon the sessions of the County Court for which summoned until excused or 
discharged by the Judge thereof : Provided, That services as jurors in the Coun- 
ty Court shall not be held to exempt a juror from services as such in the Circuit 
Court in the same year. That the Board of Jury Commissioners as constituted 
by law in said county, for the drawing of grand and petit jurors for the Circuit 
Court shall constitute the Board of Jury Commissioners for the drawing of grand 
and petit jurors to attend upon the sessions of the County Court and that the 
provisions of law applicable to drawing grand and petit jurors in the Courts of 
General Sessions shall obtain and apply in criminal cases in the County Court. 

Civ. P. '22, § 181 ; 1920, XXXI, 794. 

§ 133. Clerk — Records. — The Clerk of the Circuit Court shall be ex officio 
Clerk of the County Court, and shall keep such calendars, minutes and records of 
the said County Court, and the cases pending therein, and attend and perform 
the duties as the Clerk thereof, as is required of him by law as Clerk of the 
Circuit Court and Courts of General Sessions. That the costs of the Clerk in civil 
cases in the County Court shall be the same as those allowed in similar cases 
in the Court of Common Pleas. That the County Commissioners of said county 
shall provide all books necessary for keeping records of said Court. The Clerk 
shall receive five hundred ($500.00) dollars per annum in addition to the salary 
now paid him and shall be collected as his present salary is now collected. 

Civ. P. '22, § 132 ; 1920, XXXI, 794. 

§ 134. Sheriff. — The Sheriff of the county shall attend upon all sessions of 
the said County Court and shall be subject to the orders thereof, and shall exe- 
cute the orders, writs and mandates of the said County Court as required by law 
of him in reference to the Circuit Court, and the Courts of General Sessions. 
That the costs and fees of the Sheriff in civil cases in the County Court shall 
be the same as those allowed in similar cases in the Court of Common Pleas. 
That the Sheriff of the county shall receive five hundred ($500.00) dollars per 
annum in addition to the salary now paid him and shall be collected as his present 
salary is now collected. 

Civ. P. '22, § 133 ; 1920, XXXI, 795. 

§ 135. Compensation of Jurors and Witnesses. — Jurors in attendance upon 
the sessions of the County Court shall receive as compensation for their services 
the same per diem and mileage as is allowed said jurors in the Circuit Court. 



41 Code of Civil Pkocedure § 136 

"Witnesses in attendance upon said County Court shall receive the same compen- 
sation as witnesses in attendance upon the Circuit Court. 
Civ. P. '22, § 134 ; 1920, XXXI, 795. 

§ 136. Judge — Election — Compensation. — The presiding Judge of the 
County Court shall possess all the powers in respect to preserving order or pun- 
ishing for contempt of Court as now possessed by Circuit Judges. The term of 
office for the County Judge shall be four j^ears from the date of the expiration 
of his predecessor's term. At the next general election, and every alternate elec- 
tion thereafter, an election shall be had for County Judge, whose term of office 
shall be four years from the date of expiration of his predecessor's term of office 
or until his successor has been elected and qualified. That the said County Judge, 
before entering upon the duties of his office, shall take the same oath of office 
as required b}" law for Circuit Judges, and shall be commissioned in the same 
manner as Circuit Judges. The salary of the County Judge shall be three thou- 
sand and five hundred ($3,500.00) dollars per annum, to be paid by the county 
in monthly installments; said Judge shall not charge on the facts, but declare 
the law only. All vacancies in the office of County Judge shall be filled by ap- 
pointment by the Governor, siich appointee holding for the unexpired term of 
his predecessors. In case of absence or inability of the County Judge, at the time 
fixed for holding any term of said Court, the Governor ma}^ appoint some other 
suitable person, being an attorney at law, to hold said term of Court as special 
County Judge. The County Judge, as provided for in this Section, shall not be 
allowed to practice law in any Court in Greenville County, but may practice in 
the Probate Court and Supreme Court : Provided, That no Judge of the County 
Court shall appear as counsel for any one in any case transferred from the said 
County Court to the Court of Common Pleas, where he has been of counsel or 
where he is interested in the case, hoAvcA^er remote. 

Civ. P. '22, § 135 ; 1920, XXXI, 795, 1923, XXXIII, 106 ; 1927, XXXV, 208. 

§ 137. Bailiffs— Crier— The Clerk of Court of Greenville County, South 
Carolina, is hereby authorized and empowered to employ a Court Crier and two 
bailiffs for the County Court of Greenville County at an expense of not exceed- 
ing two ($2.00) dollars per day each for each day's service actually rendered 
in said Court while the said Court is in session. 

Civ. P. '22, § 136 ; 1920, XXXI, 796 ; 1924, XXXIII, 974. 

§ 138. Stenographer. — The said County Judge shall appoint for the said 
County Court an official stenographer, who shall attend upon the sessions of said 
Court and perform the same duties in connection therewith as are performed 
by the circuit stenographer in the Circuit Court. That the said stenographer 
shall receive from the said county the salary of one thousand ($1,000.00) dollars 
per annum, to be paid by the county in monthly installments, and in addition 
such fees as provided by law for stenographers in the Circuit Court and Courts 
of General Sessions. 

Civ. P. '22, § 137 ; 1920, XXXI, 796. 

§ 139. Costs and Fees. — All costs and disbursements allowed the prevail- 
ing party, and all costs and fees allowed officers of Court in actions in the Court 
of Common Pleas shall be allowed in actions in this Court. 

Civ. P. '22, § 138; 1920, XXXI, 796. 

§ 140. Duty of County Commissioners. — The County Commissioners of 



141 



Code of Civil Proceduee 



42 



Greenville County shall make provisions for holding the sessions of said County 
Court. 

Civ. P. '22, § 139 ; 1920, XXXI, 796. 



ARTICLE 4 
County Court of Orangeburg 



141. Establishment. 

142. Judge and Solicitor. 

143. Jurisdiction. 

144. A Court of Record. 

145. Laws Applicable. 

146. Procedure. 

147. Jurors. 

148. Jurisdiction. 

149. Appeals. 

150. Terms. 

151. Jury Commissioners. 



152. Clerk. 

153. Sheriff. 

154. Jurors and Witnesses. 

155. Judges' Salary. 

156. Solicitor. 

157. Criminal Cases. 

158. Grand Jury. 

159. Equity Cases. 

160. Stenographer. 

161. Transfer of Causes. 

162. Costs. 



163. Quarters. 



§ 141. Establishment of County Court in Orangeburg County. — A County 
Court is established, in and for the County of Orangeburg, with such jurisdic- 
tion, powers and limitations as maybe hereinafter provided. 

1925, XXXIV, 161. 

§ 142. A County Judge — Appointment — Qualifications — Oath — Term — Va- 
cancy. — The Governor shall appoint a County Judge upon the recommenda- 
tion of a majority of the members of the Orangeburg County Bar Association, 
at a meeting to be held by the said Orangeburg County Bar Association, of which 
five days' notice shall be given by mail to the members thereof by its Chairman. 
The County Judge shall be a resident practicing attorney of the Orangeburg 
County Bar, and shall qualify and take the oath of office provided, for Circuit 
Judges. That the term of office of the County Judge shall be for four years from 
the date of his qualification, and he shall serve until his successor is likewise ap- 
pointed and shall have qualified. In case of a vacancy in such office, the Gover- 
nor shall appoint his successor for the unexpired term in like manner upon the 
recommendation of the Orangeburg County Bar Association. 

1925, XXXIV, 161. 

(b) County Solicitor — Appointment — Term — Election of Successors — 
Vacancy. — There shall be appointed by the Governor, upon the recommenda- 
tion of the Orangeburg County Bar Association, a County Solicitor, who shall 
qualify and be commissioned by the Governor as in the case of Circuit Solicitors. 
The County Solicitor so appointed shall serA^e until the next ensuing general 
election, at which his successor shall be elected for a term of four years, and at 
every alternate general election thereafter there shall be an election for County 
Solicitor for a term of four years, who shall serve until his successor has been 
elected or appointed and shall have qualified. In case of a vacancy in the office 
of County Solicitor the same shall be filled by appointment by the Governor upon 
the recommendation of a majority of the members of the Orangeburg County 
Bar Association, by ballot, such appointee to hold until the next ensuing general 
election thereafter, at which time there shall be elected a County Solicitor for 
the unexpired term only. 

1925, XXXIV, 161. 

§ 143. Jurisdiction of Court. — (a) The said County Court shall have con- 
current jurisdiction with the Court of Common Pleas in all civil eases and special 



43 Code of Civil Procedure § 144 

proceedings, both at law and in equity, in which the amount demanded in the 
complaint does not exceed Three Thousand ($3,000.00) Dollars, or in which the 
value of the property involved does not exceed Three Thousand ($3,000.00) Dol- 
lars; and in all other civil cases and special proceedings, both at law and in 
equity, in which there is no money demanded, or in which the right involved 
cannot be measured or fixed by any monetary value. 

(b) The said County Court shall have concurrent jurisdiction with the Court 
of General Sessions in all criminal cases, except murder, manslaughter, rape, or 
attempt to rape, arson, common law burglary, bribery, perjury and forgery; 
and concurrent jurisdiction with the Magistrate Courts in all criminal cases 
within the jurisdiction of the Magistrate Courts. 

(c) The said County Court shall have concurrent jurisdiction with the Court 
of Common Pleas and the Court of General Sessions, respectively, to hear and 
determine all appeals in civil cases and criminal cases, respectively, from judg- 
ments rendered by the Magistrate Courts, and all other inferior Courts ; and the 
proceedings on such appeals shall be the same as now provided for appeals in 
such cases from the Magistrate Courts to the Court of Common Pleas and the 
Court of General Sessions, respectively. 

1925, XXXIV, 161. 

§ 144. To be a Court of Record — Seal — Presumption as to Proceedings. — 

The said County Court shall be a Court of Record and have a seal inscribed with 
the words: "County Court of Orangeburg County"; and the same presump- 
tion in favor of its jurisdiction and the validity of its judgments and decrees 
shall hold as m the case of jurisdiction, judgments and decrees of the Circuit 
Courts. 

1925, XXXIV, 161. 

§ 145. General Laws Applicable Unless Inconsistent — Entry of Judgments 
— Procedure in Minor Criminal Cases. — The general laws and statutory pro- 
visions, and rules of Court, applicable generally to the Circuit Courts of this 
State, and the trials of cases therein, shall apply to said County Court and to 
the conduct and trial of cases therein where not inconsistent with this Act : 
Pruvided, That any judgment rendered may be entered upon the third day 
after such rendition, or upon the same day with leave of the Court : and Provided, 
That in all criminal cases wherein the punishment does not exceed a fine of 
one huiidred dollars or imprisonment for thirty days, the same shall be tried, 
without presentment by a Grand Jury, on information or indictment filed by the 
County Solicitor. 

1925, XXXIV, 161. 

§ 146. Pleadings — Procedure — Rules of Evidence — Filing of Pleadings. — 

The same forms of pleadings and the same rules of procedure, practice and evi- 
dence shall obtain in the County Court as is provided by law for the trial of 
civil and criminal cases in the Circuit Court where not inconsistent wnth the 
previsions of this Act : Provided, That the pleadings or copies thereof in a case 
for trial before the said County Court shall be filed in the office of the Clerk of 
Court, as now provided by law in the Circuit Court, before noon of the Monday 
preceding the first day of the next ensuing term of the said County Court, and 
the Clerk shall forthwith enter the cases upon the appropriate calendar. 
1925, XXXIV, 161. 

§ 147. Selection of Juries. — (a) In the trial of all civil actions at law in the 
said County Court, and in the trial of all issues ordered to be framed by the 



§ 148 Code of Civil Procedure 44 

Judge in equity cases in said Court, it shall be the duty of the Clerk of said 
Court to furnish the parties or their attorneys with a list of ten of the jurors 
to be drawn and selected by ballot from the whole number of jurors who are in 
attendance, the names on said lists to be numbered from one to ten, from which 
said list the parties or their attorneys shall alternately strike by number, the 
plaintiff striking first, until there shall be left but six names, which shall con- 
stitute the jury to try the case or issue : Provided, That objections for cause 
shall be allowed and vacancies in the panel filled in the manner now provided 
in the Court of Common Pleas. 

(b) In the selection of a jury for the trial of criminal cases in said County 
Court the accused, when charged with a misdemeanor, shall be entitled to per- 
emptory challenges not exceeding three, and the State two; and in the trial of 
cases of felony, the accused shall be entitled to peremptory challenges not ex- 
ceeding five, and the State three. In cases where there are two or more persons 
jointly indicted and so tried, the accused shall be jointly entitled to six per- 
emptory challenges in cases of misdemeanor, and eight peremptory challenges 
in cases of felony, and no more. A jury for the trial of cases in the County 
Court shall consist of six. 

1925, XXXIV, 161. 

§ 148. Jurisdiction of County Judge. — In all cases and special proceedings 
within the jurisdiction of the County Court and pending therein, the Judge of 
the County Court shall have the same jurisdiction, both in open Court and at 
Chambers as is possessed by the Circuit Judges over cases pending in the Cir- 
cuit Court over which they are presiding, or in the Circuits in which they are 
residents : Provided, That said County Judge shall have the power to issue writs 
of habeas corpus in all cases and to grant bail in all cases triable in the County 
Court. The County Court shall be open at all times, at the convenience of the 
County Judge, for the purpose of taking pleas of guilty and imposing sentences 
in all criminal cases within the jurisdiction of this Court with the consent of 
the accused. The County Judge shall also review summarily and without notice 
upon oral or written application, the amount of bail fixed by the Clerk of Court 
or any Magistrate in the County in any criminal case for the purpose of reduc- 
ing or increasing such bail pending trial or appeal ; and may call to his aid 
for such purpose the County Solicitor. 

1925, XXXIV, 161. 

§ 149. Appeals to be to Supreme Court. — In all civil actions, criminal cases 
and special proceedings of which said County Court shall have jurisdiction, the 
right of appeal shall be to the Supreme Court of the State, and in the same man- 
ner and pursuant to the same rules, practice and procedure as now governs ap- 
peals from Circuit Courts. 

1925, XXXIV, 161. 

§ 150. Terms of Court — Upon Establishment of County Court, Certain 
Terms of Common Pleas Abolished. — The County Court shall be held on the 
second Mondays of February, March, April, May, July, September and Novem- 
ber, and at such other times as the Judge or Court shall order, and continue for 
such time as is necessary to dispose of the business before the Court : Provided, 
That said Court shall always be open for the transaction of all such business as 
can be. disposed of without a jury : and Provided, further. That each week which 
may be designated for jury trials shall be considered a term, and the County 
Judge may designate the time for holding both the civil and the criminal terms : 



45 Code of Civil Procedure § 151 

Provided, further, That upon the establishment of the County Court the April 
and November terms of the Court of Common Pleas for Orangeburg County- 
shall be abolished and the provisions of law therefor automatically repealed. 
1925, XXXIV, 161. 

§ 151. Jury Commissioners — Jury Lists — Panels — Venires.— The Board of 
Jury Commissioners as constituted by law in said county for the Circuit Court 
shall constitute the Board of Jury Commissioners for the said County Court, 
and such commissioners shall, immediately upon the establishment of the said 
County Court, and annually thereafter during the month of December of each 
year, proceed to prepare a jury list for said County Court in the manner and 
under the provisions now relating to the preparation of the jury list for the Cir- 
cuit Courts, which list may contain the names of any person now or hereafter ap- 
pearing on the jury list prepared for the Circuit Court of said County ; that the 
said Jury Commissioners shall be provided with a strong, substantial box, with- 
out apertures or openings when closed, to be known as the ' ' Jury Box for Coun- 
ty Court, ' ' which shall be prepared, secured and kept by them in like manner as 
is now provided to be done in the case of the Jury Box for the Circuit Courts ; 
that they shall place in a special apartment in the said jury box (which special 
apartment shall be known as the "Tales Box") the names of not less than three 
hundred nor more than eight hundred of such persons whose names appear on 
said list as reside within ten miles of the Court House, from which Tales Box 
shall be drawn jurors to supply deficiencies arising from any cause or emergency 
during the sitting of the Court. The names of persons placed in said Tales 
Box shall be also placed in the said jury box ; that such Commissioners shall, at 
least ten days before the convening of the Court, and after five days' notice of 
such drawing from the jury box, which notice may be given either by posting 
same on the Court House Door or publication in a newspaper published in said 
County, draw a penal of petit jurors, and the Clerk of said Court shall im- 
mediately issue to the Sheriff a venire containing the names of the persons thus 
drawn as petit jurors, which venire shall be returnable at such times as may be 
named, and the persons so served shall be the jurors for said Court ; and the law 
relating to the qualifications, drawing and summoning jurors of the Circuit 
Court shall apply, except as herein otherwise provided : Provided, That not more 
than eighteen persons shall be drawn and summoned to attend at the same time 
at any session of the County Court, unless the Court shall otherwise order. 
Jurors drawn and summoned shall appear and attend upon the sessions of the 
County Court for which summoned until discharged by the Judge thereof : Pro- 
vided, That service as jurors in the County Court shall not be held to exempt 
a juror from service as such in the Circuit Court in the same year, nor shall 
service as a juror in the Circuit Court be held to exempt a juror from service as 
such in the County Court in the same year, nor shall a juror be required to 
serve in such County Court for a full week more than once in the same year. 

1925, XXXIV, 161. 

§ 152. Clerk — Costs — Records — Entry of Judgments on Abstract — Index- 
ing. — The Clerk of the Circuit Court shall be ex officio clerk of the County 
Court and shall keep such calendars, minutes and records of the said County 
Court, and the cases therein pending, and attend and perform the duties as the 
Clerk thereof, as is required of him by law as Clerk of the Circuit Court. That 
the costs and fees of the Clerk in civil cases in the County Court shall be the 
same as those allowed in similar cases in the Court of Common Pleas, and shall 
receive a salary in addition thereto of six hundred ($600.00) dollars per annum, 



§ 153 Code of Civil Procedure 4Q 

payable in monthly installments by the County. That the County Commissioners 
of said county shall provide all books necessary for keeping records of said 
Court. In all civil cases tried in the County Court the Clerk shall make up and 
file a judgment roll along with and in the same manner as if the judgment had 
been rendered in the Court of Common Pleas ; he shall also enter the judgment 
in the Abstracts of Judgments of the Court of Common Pleas as if such judg- 
ment were a judgment of the Court of Common Pleas ; and he shall also index 
such judgments in the indices of judgments of the Court of Common Pleas in 
the same manner as if such judgments were judgments of the Court of Common 
Pleas for said county. 
1925, XXXIV, 161. 

§ 153. Duty of Sheriff— Fees— Bailiffs.— The Sheriff of the County, or his 
deputy, shall attend upon all sessions of the said County Court, and shall be 
subject to the orders thereof, and shall execute the orders, writs and mandates 
of the said County Court as required by law of them in reference to the Circuit 
Court. That the costs and fees of the Sheriff in civil and criminal cases in the 
County Court shall be the same as those 'allowed in similar cases in the Court 
of Common Pleas and General Sessions. The Sheriff shall appoint such bailiffs 
as may be necessary, with the approval of the Judge. 

1925, XXXIV, 161. 

§ 154. Pay of Jurors — of Witnesses. — Jurors in attendance upon the ses- 
sions of the County Court shall receive as compensatioir for their services the 
same per diem and mileage as is allowed said jurors in the Circuit Court. Wit- 
nesses in attendance upon the said County Court shall receive the same com- 
pensation as witnesses in attendance upon the Circuit Court. 
■ 1925, XXXIV, 161. 

§ 155. Compensation of County Jud^e — Special County Judges. — The sal- 
ary of the County Judge shall be three thousand ($3,000.00) dollars per an- 
num, to be paid monthly by the county, and in addition he shall be allowed 
twenty-five ($25.00) dollars per month for ofiice rent and expenses. In case of 
the absence or inability of the County Judge at the time fixed for holding the 
terms of said Court or in case of disqualification for trial of any case in said 
Court, upon request of the County Judge, or a majority of the members of the 
Orangeburg County Bar Association, the Governor may appoint some other suit- 
able person, being an attorney at law, to hold said term or terms of the County 
Court that may be designated by the Governor, or to try any special case, as 
Special County Judge, who shall be entitled to the same per diem as Special 
Circuit Judges are now allowed by law. 

1925, XXXIV, 161. 

§ 156. Salary of County Solicitor^ — Procedure upon Inability to Serve — 
Duties of County Solicitor. — The County Solicitor shall receive a salary of 
twelve hundred ($1,200.00) dollars per annum, payable in monthly install- 
ments by the county. In case of sickness, disability or inability of the County 
Solicitor to serve for any reason at any term, or in any case, the County Judge 
may call upon the Circuit Solicitor, or appoint some other attorney to serve in 
his place. It shall be the duty of the County Solicitor to appear for and represent 
the State in all criminal cases tried in the said County Court; he shall prepare 
and hand out to the Grand Jury all such indictments as may be necessary; he 
shall also appear for and represent the State in all appeals from the said County 
Court, and may call upon the Circuit Solicitor for such assistance as may be 



47 ■ Code of Civil Procedure § 157 

necessary; he shall also appear for and represent the State in all appeals in 
ehiminal cases from the Magistrate's Court in the County Court. The said Coun- 
ty Solicitor shall also advise with and aid the Grand Jury of the County in its 
duties, and also the Coroner or Magistrates in inquisitions. The said County So- 
licitor shall not practice law in criminal cases in the Magistrate's Court of Or- 
angeburg County, nor shall he appear for the defense in any criminal cases in 
the Court of General Sessions for said county. 
1925, XXXIV, 161. 

§ 157. Preparation of Criminal Cases for County Court. — The Magistrates 
of Orangeburg County are required to promptly file with the Clerk of the Court, 
all papers in criminal prosecutions, triable in the County Court, and they shall 
make all bonds and recognizance of witnesses and defendants returnable to the 
next ensuing term of said County Court. It shall be the duty of the Clerk of 
Court to notify the County Solicitor upon the filing of such papers and turn 
same over to him. The said Magistrates are required to make a list of such wit- 
nesses as they deem material on the back of the arrest warrant, and while he 
shall be careful to furnish the names of witnesses deemed necessary to establish 
the charge in the warrant, he shall be equally careful not to furnish the names 
of any witnesses whose testimony is immaterial. 

1925, XXXIV, 161. 

§ 158. Grand Jury. — The Grand Jury drawn for and serving in the Court 
of General Sessions for Orangeburg County shall constitute the Grand Jury of 
the said County Court and shall so serve and act upon all necessary indictments 
of the said Court, and the said Grand Jury shall attend upon the sessions of the 
said County Court, whenever notified so to do by request of the County Solicitor 
and order of the County Judge ; the County Solicitor shall appear at the regular 
terms of the Court of General Sessions and may hand out indictments at that 
time to the Grand Jury for the County Court cases and the Grand Jury shall act 
upon such indictments as in indictments presented for cases in the Court of 
General Sessions. The Grand Jurors shall receive as compensation for their serv- 
ices in attendance upon the County Court the same pay as allowed by law in the 
Court of General Sessions. 

1925, XXXIV, 161. 

§ 159. Trial of Equity Cases. — In actions on the civil side of Court in which 
reference to the Master may, under the law, now be necessary, said actions may 
be heard and determined by the said County Judge, either in term time or at 
chambers, without referring the same to the said Master, upon testimony taken 
before the said Judge ; and likewise in all cases where a jury trial may not be 
necessary or required. All sales to be made by the Master as in cases before the 
Court of Common Pleas. 

1925, XXXIV, 161. 

§ 160. Stenographer. — The said County Judge shall appoint for said Coun- 
ty Court an official stenographer, to serve at his pleasure, who shall attend upon 
the sessions of the said Court and perform the same duties in connection there- 
with as are performed by the stenographers in the Circuit Court. That the said 
stenographer shall receive for such services a salary of nine hundred ($900.00) 
dollars per annum, payable monthly by the county, and the said stenographer 
shall furnish transcripts of the proceedings upon request of the parties litigant 
and shall be entitled to receive as compensation therefor a fee of five cents per 
hundred words for all transcripts so furnished, which shall be paid by the liti- 



§ 161 



Code of Civil Pkocedurb 



48 



gant requesting the same, except in criminal cases where the defendant may 
satisfy the Court that he is unable to pay for such transcript, when the same 
shall be furnished without fee by the Court stenographer ; and the said stenog- 
rapher shall write out for the County Judge and the County Solicitor without 
charge such records, excerpts and transcripts as they may require. 
1925, XXXIV, 161. 

§ 161. Transfer of Causes. — Any case pending in the Court of Common 
Pleas upon the establishment of the County Court for Orangeburg County may 
be transferred to the County Court for trial upon motion, after five days ' notice 
to the opposite party, to be heard in open Court or at chambers, if it shall appear 
that such action may have been brought originally in the County Court, if then 
established, and if, in the opinion of the Court or Circuit Judge at Chambers, 
it would serve the best interests of all parties concerned for such case to be trans- 
ferred for such trial to the County Court ; and likewise any case, within the juris- 
diction of the County Court, that may hereafter be brought in the Court of 
Common Pleas in the said County may be transferred to the County Court for 
trial ; and any case brought in the County Court may be transferred to the Court 
of Common Pleas for trial upon motion of either party, as herein provided for 
the transfer of cases to the County Court, by the County Judge, if, in the opinion 
of such County Judge, it would serve the best interests of all parties concerned 
for such case to be transferred for trial to the Court of Common Pleas. The 
County Judge may change the place of trial of any case pending in his Court 
to the Circuit Court in another county in the same manner as provided by law 
in respect to changing place of trial in cases pending in the Circuit Court. 

1925, XXXIV, 161. 

§ 162, Court Costs. — All costs and disbursements allowed the prevailing 
party, and all costs and fees allowed officers of the Court in actions in the Court 
of Common Pleas, shall be allowed in actions in the County Court. 

1925, XXXIV, 161. 

§ 163. — Quarters for Court. — The County Highway Commission of Orange- 
burg County shall make provisions for holding the sessions of the said County 
Court by setting apart suitable quarters in the Orangeburg County Court House 
therefor. 

1925, XXXIV, 161. 



164. Establishment. 

165. Jurisdiction. 

166. Court of Record. 

167. Laws Applicable. 

168. Procedure. 

169. 17.3, 176. Jury. 

170. Special Proceedings. 

171. Appeal. 



ARTICLE 5 
County Court of Eichland 

172. Sessions. 

174. Clerks. 

175. Sheriff. 

176. Witnesses. 

177. Judge. 

178. Bailiffs. 

179. Stenographer. 

180. Costs. 
181. Quarters. 



§ 164. County Court for Richland County. — A majority of the qualified 
electors voting at an election held, as provided by law, upon the question of the 
establishment of a County Court for the County of Richland, having voted in 
favor thereof, a County Court shall be, and is hereby, established in and for 
said County of Richland with such jurisdiction as is hereinafter provided. 

Civ. P. '22, § 99 ; 1917, XXX, 156. 



49 Code of Civil Procedure § 165 

§ 165. Jurisdiction. — The said County Court shall have concurrent juris- 
diction with the Court of Common Pleas in all civil cases and special proceed- 
ings, both at law and in equity, where the amount demanded in the complaint 
does not exceed three thousand ($3,000.00) dollars, or when the value of the 
property involved does not exceed three thousand ($3,000.00) dollars, and in 
all other civil cases and special proceedings, both at law and in equity, in which 
there is no money demand, or in which the right involved cannot be monetarily 
measured. That the said Court shall have concurrent jurisdiction with the Cir- 
cuit Court to hear and determine all appeals in civil cases from judgments ren- 
dered by Magistrates' Courts; and the proceedings on such appeal shall be the 
same as is now provided for appeal from said last named Courts to the Courts 
of Common Pleas and General Sessions. 

Civ. P. '22, § 100 ; 1917, XXX, 156 ; 1921, XXXII, 123. 

§ 166. Courts of Record — Seal — Presumption as to Validity of Judg- 
ments and Decrees. — The said County Court shall be a Court of Record, and 
have a seal inscribed with the words, ' ' County Court of Richland County, ' ' and 
the same presumption in favor of its jurisdiction and the validity of its judg- 
ments and decrees shall hold as in case of judgments rendered by the Circuit 
Court. 

Civ. P. '22, § 101 ; 1917, XXX, 156. 

§ 167. General Laws to Apply — Entry of Judgment. — All general laws and 
statutory provisions applicable generally to the Circuit Courts of this State and 
trial of cases therein shall apply to said County Courts and to the conduct and 
trial of cases therein where not inconsistent with this Act : Provided, That any 
judgment rendered, other than that upon the verdict of a jury, may be entered 
upon the day of such rendition. 

Civ. P. '22, § 102 ; 1917, XXX, 156 ; 1918, XXX, 748. 

§ 168. Forms of Pleading — Rules of Evidence — Filing of Pleadings. — The 

same forms of pleadings and the same rules of procedure, practice and evidence 
shall obtain in the County Court as is provided by law for the trial of civil cases 
in the Circuit Court, where not inconsistent with the provisions of this Act: 
Provided, That the pleadings or copies thereof in a case for trial before the said 
Court shall be filed in the Clerk's office, as now provided by law for the Circuit 
Court, before six o'clock in the afternoon of the "Wednesday preceding the first 
day of the next ensuing term of the said County Court, and the Clerk shall 
forthwith enter the cases upon the appropriate calendar. 
Civ. P. '22, § 103 ; 1917, XXX, 156. 

§ 169. Jury Trial — ^Waiver. — Where a jury is required by law in the trial 
of all civil cases, in said Court, said jury shall consist of six persons. In all civil 
actions either party may demand a jury trial in all cases in which a trial by 
jury is granted of right under the Constitution and laws of this State, but such 
demand must be made on or before the first day of the term, or upon the call 
of the calendar on the first day of the term, and the failure to make such de- 
mand shall be a waiver of said right of trial by jury. 

Civ. P. '22, § 104 ; 1917, XXX, 156. 

§ 170. Powers in Cases and Special Proceedings — May Grant Bail and Issue 
Writs of Habeas Corpus. — In all cases and special proceedings within the juris- 
diction of the County Court and pending therein the Judge of the County Court 
shall have the same jurisdiction both in open Court and at chambers, as is 



§ 171 Code of Civil Pkocedure 50 

possessed by Circuit Judges over cases pending in the Circuit Court over which 
they are presiding, or in the Circuits in which they are residents : Provided, That 
said County Judge shall have the power to issue writs of habeas corpus in all 
cases and to grant bail, except in capital cases. 
Civ. P. '22, § 105 ; 1917, XXX, 156. 

§ 171. Appeal — Procedure. — In all civil actions and special proceedings 
of which said County Court shall have jurisdiction, the right of appeal shall be 
to the Supreme Court of the State, in the same manner and pursuant to the 
same rules, practice and procedure as now govern appeals from Circuit Courts. 

Civ. P. '22, § 106 ; 1917, XXX, 156. 

§ 172. Sessions — To Be Open Always for Certain Business. — The County 
Court shall be held at the discretion of the County Judge at such times as he 
may deem necessary to properly dispatch the business of the Court, and con- 
tinue for such time as is necessary to dispose of the business before the Court : 
Provided, That said Court shall always be open for the transaction of such civil 
business as can be disposed of without a jury : And provided, further, That each 
week which may be designated for jury trials shall be considered a term. 

Civ. P. '22, § 107 ; 1917, XXX, 156 ; 1918, XXX, 748. 

§ 173. Juries. — The Board of Jury Commissioners as constituted by law in 
said county for the drawing of the jurors for the Circuit Court shall constitute 
the Board of Jury Commissioners for the drawing of jurors to attend upon the 
sessions of the County Court, and such Commissioners shall, upon the order 
of said Court, at such times as shall be fixed, and after five days ' notice of such 
drawing, from the jury box (whether the same has been previously drawn or 
not), draw a panel of petit jurors, and the Clerk of said Court shall immediately 
issue to the Sheriff a venire containing the names of the persons thus drawn 
as petit jurors, which venire shall be returnable at such times as may be named 
by the said Court, and the persons so served shall be the jurors for said Court, 
and the law relating to the qualification, drawing and summoning of jurors of 
the Circuit Court, shall apply, except as herein otherwise provided : Provided, 
That not more than eighteen persons shall be drawn and summoned to attend 
at the same time at any session of the County Court, unless the Court shall other- 
wise order. Jurors drawn and summoned shall appear and attend upon the ses- 
sions of the County Court for which summoned until excused or discharged 
by the Judge thereof : Provided, That services as jurors in the County Court 
shall not be held to exempt a juror from services as such in the Circuit Court, 
in the same year, nor shall a juror be required to serve in such County Court 
more than once in the same year : Provided, further. That plaintiff and defendant 
in a cause shall, each, be allowed to strike three jurors. 

Civ. P. '22, § 108 ; 1917, XXX, 156 ; 1918, XXX, 748. 

§ 174. Clerks — Duties — Compensation. — The Clerk of the Circuit Court 
shall be ex officio Clerk of the County Court, and shall keep such calendars, min- 
utes and records of the said County Court, and the cases therein pending, and 
attend and perform the duties of the Clerk thereof, as is required of him by law 
as Clerk of the Circuit Court. That the costs and fees of the Clerk in civil cases in 
the County Court shall be the same as those allowed in similar cases in the Court 
of Common Pleas. That the County Commissioners of said county shall provide 
all books necessary for keeping records of said Court. 

Civ. P. '22, § 109 ; 1917, XXX, 156 ; 1918, XXX, 748. 



51 Code of Civil Procedure § 175 

§ 175. Sheriff — Duties — Compensation. — The Sheriff of the county shall at- 
tend upon all sessions of the said County Court, and shall be subject to the 
orders thereof, and shall execute the orders, writs and mandates of the said 
County Court as required by law of him in reference to the Circuit Court. That 
the cost and fees of the Sheriff in civil cases in the County Court shall be the 
same as those allowed in similar cases in the Court of Common Pleas. 

Civ. P. '22, § 110 ; 1917, XXX, 156. 

§ 176. Compensation of Jurors and Witnesses. — Jurors in attendance upon 
the sessions of the County Court shall receive as compensation for their services 
the same per diem and mileage as is allowed said jurors in the Circuit Court. 
Witnesses in attendance upon the said County Court shall receive the same com- 
pensation as witnesses in attendance upon the Circuit Court. 

Civ. P. '22, § 111; 1917, XXX, 156. 

§ 177. Judge — Term — Oath— Salary — Vacancy — Special Judge — Not to 
Practice in Certain Cases. — It shall be the duty of the Governor to appoint a 
resident attorney at law of Richland County as County Judge, who shall receive 
the largest number of votes at the time of the submission of this Act to the people 
for its approval, and who shall hold office until the next general election and 
until his successor shall be appointed and qualified and who shall be the presid- 
ing Judge of said County Court. The said Judge of said Court shall possess all 
the powers in respect to preserving order or punishing for contempt of Court as 
now possessed by Circuit Judges. The term of office for the County Judge shall 
be four years from the date of the expiration of his predecessor 's term. At the 
next general election, and at every alternate election thereafter, an election 
shall be had for County Judge, whose term of office shall be four years from date 
of expiration of his predecessor's term of office, or until his successor has been 
elected and qualified. That the said County Judge before entering upon the duties 
of his office, shall take the same oath of office as required by law of all Circuit 
Judges, and shall be commissioned in the same manner as Circuit Judges. The 
salary of the County Judge shall be five thousand five hundred ($5,500.00) 
dollars per annum, to be paid by the county in monthly installments. Said 
Judge shall not charge on the facts, but shall declare the law only. All vacancies 
in the office of County Judge shall be filled by appointment by the Governor, 
such appointments holding for the unexpired terms of his predecessor. In case 
of absence or inability of the County Judge, at the time fixed for holding any 
term of said Court, the Governor may appoint some other suitable person (be- 
ing an attorney at law) to hold said term of Court as Special County Judge. 
The County Judge, as provided for in this Act, shall not be allowed to practice 
law in the Courts of this State. 

Civ. P. '22. § 112 ; 1917, XXX, 156 ; 1918, XXX, 748 ; 1920, XXXI, 743 ; 1921, XXXII, 
123 ; 1926, XXXIV, 1042 ; 1929, XXXVI, 135. 

§ 178. Bailiffs— Compensation.— The said Judge of the County Court may 
appoint a sufficient number of bailiffs, not to exceed two, to attend upon the said 
Court, and be subject to the orders thereof ; and the said bailiffs shall have the 
same power as constables of said county, and one of said bailiffs shall receive as 
compensation three ($3.00) dollars per day for the time actually engaged, and 
shall not be retained in attendance upon the Court longer than the exigencies 
of the Court may require, and the other bailiff shall attend upon the Court daily 
and receive as compensation the sum of twelve hundred ($1,200.00) dollars 
per annum, to be paid by the county in monthly installments, reckoning from 
January 1, 1920. 

Civ. P. '22, § 113 ; 1917, XXX, 156 ; 1918, XXX, 748 ; 1919, XXXI, 147 ; 1920, XXXI, 943. 



§179 Code of Civil Procedure 52 

§ 179. Stenographer.- — The said County Judge shall appoint for the said 
Countj^ Court an official stenographer, who shall attend upon the sessions of said 
Court and perform the duties in connection therewith as performed by the Cir- 
cuit stenographer in the Circuit Court. That the said stenographer shall re- 
ceive from the county the salary of Two Thousand Dollars ($2,000.00) per an- 
num reckoning from January 1, 1921, to be paid by the county in monthly in- 
stallments, and, in addition, such fee as provided herein : Provided, That no ste- 
nographer of the County Court shall appear as counsel in said Court. 

Civ. P. '22, § 114; 1917, XXX, 156; 1918, XXX, 748; 1919, XXXI, 235; 1921, XXXII, 
123. 

§ 180. Costs and Disbursements. — All costs and disbursements allowed the 
prevailing party, and all costs and fee allowed officers of Court in actions in 
the Court of Common Pleas, shall be allowed in actions in this Court. 

Civ. P. '22, § 115 ; 1917, XXX, 156. 

§ 181. Court Room — Code and Acts to Be Furnished. — The County Com- 
missioners of Richland County shall make provisions by setting apart suitable 
quarters in the court house for holding the sessions of said County Court, and 
shall provide the said Court with the volumes of the Code of Laws of South 
Carolina, as at present published and as may hereafter be published, together 
with the public Acts of the General Assembly for each year as they are issued, 
beginning with 1912. 

Civ. P. '22, § 116 ; 1917, XXX, 156 ; 1918, XXX, 748. 



ARTICLE 6 

County Court of Spartanburg 

181A. Eptablisbment. 181L. Clerk. 

181B. Judge and Solicitor. 181M. Sheriff and Bailiffs. 

181C. Jurisdiction. 181N. Jurors and Witnesses. 

181D. Court of Record. 1810. Judge's Salary. 

181E. Rules and Regulations. 181P. Solicitor. 

181F. Procedure. 181Q. Criminal Cases. 

181 G. Jurv. 181R. Grand Jury. 

181H. Jurisdiction. 181S. Trial by the Court. 

1811. Appeals. 181T. Stenographer. 

181J. Terms. 181U. Transfer of Cause. 

181K. Jury Commissioners. 181V. Cost. 

181W. Quarters. 

§ 181A. County Court Established in Spartanburg County. — A County 
Court shall be, and hereby is forthwith established, in and for the County of 
Spartanburg, with such jurisdiction, powers and limitations as may be herein- 
after provided. 

1930, XXXVI, 1117. 

§ 181B. Judge — Appointment — Term of Office — Vacancy. — (a) The Gover- 
nor shall appoint a County Judge upon the recommendation of a majority of 
the members of the Spartanburg County Legislative Delegation in the General 
Assembly at a meeting to be held by the said Spartanburg County Legislative 
Delegation, of which five days' notice shall be given by mail to the members 
thereof by its chairman. The County Judge shall be a resident practicing at- 
torney of the Spartanburg County Bar, and shall qualify and take the oath of 
office provided for Circuit Judge. That the term of office of the County Judge 
shall be four years from the elate of his qualification, and he shall serve until 
his successor is likewise appointed and shall have qualified. In case of a vacancy 



53 Code of Civil Procedure § 181C 

in such office, the Governor shall appoint his successor for the unexpired term 
in like manner upon the recommendation of the Spartanburg County Legis- 
lative Delegation. 
1930, XXXVI, 1117. 

(b) Solicitor — Term — Election — Vacancy. — There shall be appointed by 
the Governor, upon the recommendation of the Spartanburg County Legisla- 
tive Delegation in the General Assembly, a County Solicitor, who shall qualify 
and be commissioned b}^ the Governor as in the case of Circuit Solicitors. The 
County Solicitor so appointed shall serve until the next ensuing general elec- 
tion, at which his successor shall be elected for a term of four years, and at every 
alternate general election thereafter there shall be an election for County Solici- 
tor for a term of four years, who shall serve until his successor has been elected 
or appointed and shall have qualified. In case of a vacancy in the office of Coun- 
ty Solicitor the same shall be filled by appointment by the Governor upon the 
recommendation of a majority of the members of the Spartanburg County Leg- 
islative Delegation by ballot, such appointee to hold until the next ensuing gen- 
eral election thereafter, at which time there shall be elected a County Solicitor 
for the unexpired term only. 

1930, XXXVI, 1117. 

§ 181C. Jurisdiction. — (a) The Said County Court shall have concurrent 
jurisdiction with the Court of Common Pleas in all civil cases and special pro- 
ceedings, both at law and in equity, in which the amount demanded in the com- 
plaint does not exceed three thousand ($3,000.00) dollars, or in which the valu© 
of the property involved does not exceed three thousand ($3,000.00) dollars,-:, 
and in all other civil cases and special proceedings, both at law and in equity,, 
and in which there is no money demanded, or in which the right involved can- 
not be measured or fixed by any monetary value. 

(b) The said County Court shall have concurrent jurisdiction with the Court 
of General Sessions in all criminal cases, except murder, manslaughter, rape, 
or attempt to rape, arson, common law burglary, bribery, perjury and forgery, 
and concurrent jurisdiction with the Magistrate Courts in all criminal cases 
within the jurisdiction of the Magistrate Courts. 

(c) The said County Court shall have concurrent jurisdiction with the Court 
of Common Pleas and the Court of General Sessions, respectively, to hear and 
determine all appeals in civil cases and criminal cases, respectively, from judg- 
ments rendered by the Magistrate Courts, and all other inferior Courts; and 
the proceedings on such appeals shall be the same as now provided for appeals 
in such cases from the Magistrate Courts to the Court of Common Pleas and 
the Court of General Sessions, respectively. 

1930, XXXVI, 1117. 

§ 181D. Court of Record.— The said County Court shall be a Court of Rec- 
ord and have a seal inscribed with the words: "County Court of Spartanburg 
County"; and the same presumption in favor of its jurisdiction and the validity 
of its judgments and decrees shall hold as in the case of jurisdiction, judgments 
and decrees of the Circuit Courts. 

1930, XXXVI, 1117. 

§ 181E. Rules and Regulations. — The general laws and statutory provisions, 
and rules of Court, applicable generally to the Circuit Court of this State, and 
the trials of cases therein, shall apply to said County Court and to the conduct 
and trial of cases therein where not inconsistent with this Article: Provided, 
That any judgment rendered may be entered upon the third day after such 



§ 181F Code of Civil Proceduee 54 

rendition, or upon the same day with leave of the Court : And provided, That in 
all criminal cases wherein the punishment does not exceed a fine of one hundred 
dollars or imprisonment for thirty days, the same shall be tried, without pre- 
sentment by a Grand Jury, on information or indictment filed by the County 
Solicitor. 

1930, XXXVI, 1117. 

§ 181F. Pleadings — Procedure — Practice — Evidence. — The same form of 
pleadings and the same rules of procedure, practice and evidence shall obtain 
in the County Court as is provided by law for the trial of civil and criminal 
cases in the Circuit Court where not inconsistent with the provisions of this 
Article: Provided, That the pleadings or copies thereof in a case for trial be- 
fore the said County Court shall be filed in the office of the Clerk of Court, as 
now provided by law in the Circuit Court, before noon of the Monday preceding 
the first day of the next ensuing term of the said County Court, and the Clerk 
shall forthwith enter the cases upon the appropriate calendar. 

1930, XXXVI, 1117. 

§ 181G. Juries — Civil — Criminal — Number. — (a) In the trial of all civil ac- 
tions at law in the said County Court, and in the trial of all issues ordered to 
be framed by the Judge in equity cases in said Court, it shall be the duty of 
the Clerk of the said Court to furnish the parties or their attorneys with a list 
of ten of the jurors to be drawn and selected by ballot from the whole number of 
jurors who are in attendance, the names on said lists to be numbered from one 
to ten, from which said list the parties or their attorneys shall alternately strike 
by number, the plaintiff striking first, until there shall be left but six names, 
which shall constitute the jury to try the case or issue : Provided, That objec- 
tions for cause shall be allowed and vacancies in the panel filled in the manner 
now provided in the Court of Common Pleas. 

(b) In the selection of a jury for the trial of criminal cases in said County 
Court the accused, when charged with a misdemeanor, shall be entitled to per- 
emptory challenges as is now provided by law for trial of similar cases in the 
Court of General Sessions ; and in the trial of cases of felony, the accused shall 
be entitled to peremptory challenges as is now provided by law for the trial of 
similar cases in the Court of General Sessions, and the State the same number 
as now provided by law in the Court of General Sessions. A jury for the trial 
of cases in the County Court shall consist of six. 

1930, XXXVI, 1117. 

§ 181H. Jurisdiction — Power of Judge — Open Court. — In all cases and 
special proceedings within the jurisdiction of the County Court and pending 
therein, the Judge of the County Court shall have the same jurisdiction, both in 
open Court and at chambers, as is possessed by the Circuit Judges over cases 
pending in the Circuit Courts over which they are presiding, or in the Circuits 
in which they are residents: Provided, That said County Judge shall have the 
power to issue writ of habeas corpus in all cases and to grant bail in all cases 
triable in the County Court. The County Court shall be open at all times, at 
the convenience of the County Judge, for the purpose of taking pleas of guilty 
and imposing sentences in all criminal cases within the jurisdiction of this Court 
with the consent of the accused. The County Judge shall also review summarily 
and without notice upon oral or written application, the amount of bail fixed 
by the Clerk of Court or any Magistrate in the county in any criminal case for 
the purpose of reducing or increasing such bail pending trial or appeal; and 
may call to his aid for such purpose the County Solicitor. 

1930, XXXVI, 1117. 



55 Code of Civil Procedure § 1811 

§ 1811. Appeals. — In all civil actions, criminal cases and special proceedings 
of which said County Court shall have jurisdiction, the right of appeal shall be 
to the Supreme Court of the State, and in the same manner and pursuant to 
the same rules, practice and procedure as now governs appeals from Circuit 
Courts. 

1930, XXXVI, 1117. 

§ 181J. Terms. — The County Court shall be held on the second Mondays of 
February, March, April, May, July, September and November, and at such 
other times as the Judge or Court shall order, and continue for such time as is 
necessary to dispose of the business before the Court : Provided, That said Court 
shall always be open for the transaction of all such business as can be disposed 
of without a jury : And provided, further. Each week that may be designated 
for jury trials shall be considered a term, and the County Judge may designate 
the time for holding both the civil and criminal terms. 

1930, XXXVI, 1117. 

§ 181K. Jury Commissioners — Duties — Jurors — Tales Box. — The Board of 
Jury Commissioners as constituted loy law in said county for the Circuit Court 
shall constitute the Board of Jury Commissioners for the said County Court, 
and such Commissioners shall, immediately upon the establishment of the said 
County Court, and annually thereafter during the month of December of each 
year, proceed to prepare a jury list for said County Court in the manner and 
under the provisions now relating to the preparation of the jury list for the 
Circuit Court, which list may contain the names of any person now or hereafter 
appearing on the jury list prepared for the Circuit Court of said county; that 
the said Jury Commissioners shall be provided with a strong, substantial box, 
without apertures or openings w^hen closed, to be known as the "Jury Box for 
County Court," which shall be prepared, secured and kept by them in like 
manner as is now provided to be done in the case of the jury box for the Circuit 
Courts; that they shall place in a special apartment in the said jury box (which 
special apartment shall be known as the "Tales Box") the names of not less 
than three hundred nor more than eight hundred of such persons whose names 
appear on said list as reside within ten miles of the court house, from which 
Tales Box shall be drawn jurors to supply deficiencies arising from any cause 
or emergency during the sitting of the Court. The names of persons placed in 
said Tales Box shall be also placed in the said jury box; that such Commis- 
sioners shall, at least ten days before the convening of the court, and after five 
days' notice of such drawing from the jury box, which notice may be given 
either by posting same on the court house door or publication in a newspaper 
published in said county, draw a panel of petit jurors, and the Clerk of said 
Court shall immediately issue to the Sheriff a venire containing the names of 
the persons thus drawn as petit jurors, which venire shall be returnable at such 
times as may be named, and the persons so served shall be the jurors for said 
court ; and the law relating to the qualifications, drawing and summoning jurors 
of the Circuit Court shall apply, except as herein otherwise provided : Provided, 
That not more than eighteen persons shall be drawn and summoned to attend 
at the same time at any session of the county court, unless the court shall other- 
wise order. Jurors drawn and summoned shall appear and attend upon the ses- 
sions of the county court for which summoned until discharged by the Judge 
thereof : Provided, That service as jurors in the county court shall not be held 
to exempt a juror from service as such in the Circuit Court in the same year, 
nor shall service as a juror in the Circuit Court be held to exempt a juror from 
service as such in the county court in the same year, nor shall a juror be re- 



§ 181L Code of Civil Procedure 5& 

quired to serve in such connty court for a full week more than once in the same 
year. 

1930, XXXVI, 1117. 

§ 181L. Clerk of Court — Duties — Compensation — Judgments. — The Clerk 
of the Circuit Court shall be ex officio Clerk of the County Court and shall keep 
such calendars, minutes and records of the said county court, and the cases 
therein pending and attend and perform the duties as the Clerk thereof, as is 
required of him by law as Clerk of the Circuit Court. That the costs and fees 
of the Clerk in civil cases in the county court shall be the same as those allowed 
in similar cases in the Court of Common Pleas, and shall receive a salary in 
addition thereto of six hundred ($600.00) dollars per annum, payable in month- 
ly installments by the county. That the County Commissioners of said county 
shall provide all books necessary for keeping records of said court. In all civil 
cases tried in the ^county court the Clerk shall make up and file a judgment roll 
along with and in the same manner as if the judgment had been rendered in 
the Court of Common Pleas; he shall also enter the judgment in the Abstracts 
of Judgments of the Court of Common Pleas as if such judgment were a judg- 
ment of the Court of Common Pleas; and he shall also index such judgments 
in the indices of judgment of the Court of Common Pleas in the same manner 
as if such judgments were judgments of the Court of Common Pleas for said 
county. 

1930, XXXVI, 1117. 

§ 181M. Sheriff— Duties— Bailiffs.— The Sheriff of the county, or his 
deputy, shall attend upon all sessions of the said county court, and shall be sub- 
ject to the orders thereof, and shall execute the orders, writs and mandates of 
the said county court as required by law of them in reference to the Circuit 
Court. That the costs and fees of the Sheriff in civil and criminal cases in the 
county court shall be the same as those allowed in similar cases in the Court of 
Common Pleas and General Sessions. The Sheriff shall appoint such bailiffs as 
may be necessary, with the approval of the Judge. 

1930, XXXVI, 1117. 

§ 181N. Jurors — Witnesses — Compensation.— Jurors in attendance upon 
the sessions of the county court shall receive as compensation for their services 
the same per diem and mileage as is allowed said jurors in the Circuit Court. 
"Witnesses in attendance upon the said county court shall receive the same com- 
pensation as witnesses in attendance upon the Circuit Court. 

1930, XXXVI, 1117. 

§ 1810. Judge's Salary — Special Judges — How Appointed. — The salary of 
the County Judge shall be three thousand ($3,000.00) dollars per annum, to be 
paid monthly by the county. In case of the absence or inability of the County 
Judge at the time fixed for holding the terms of said court or in case of dis- 
qualification for trial of any case in said court, upon request of the County 
Judge, or a majority of the members of the Spartanburg County Bar Associa- 
tion, the Governor may appoint some other suitable person, being an attorney 
at law, to hold said term or terms of the county court that may be designated 
by the Governor, or to try any special case, as Special County Judge, who shall 
be entitled to the same per diem as Special Circuit Judges are now allowed by 
law. 

1930, XXXVI, 1117. 

§ 181P. Solicitor's Salary — Special Solicitors — Duties. — The County Solici- 
tor shall receive a salary of fifteen hundred ($1,500.00) dollars per annum. 



57 Code of Civil Procedure § 181Q 

payable in montlily installments by the county. In case of sickness, disability 
or inability of the County Solicitor to serve for any reason at any term, or in 
any case, the County Judge may call upon the Circuit Solicitor, or appoint some 
other attorney to serve in his place. It shall be the duty of the County Solicitor 
to appear for and represent the State in all criminal cases tried in the said 
county court ; he shall prepare and hand out to the Grand Jury all such indict- 
ments as may be necessary; he shall appear for and represent the State in all 
appeals from the said county court, and may call upon the Circuit Solicitor 
for such assistance as may be necessary; he shall also appear for and represent 
the State in all appeals in criminal cases from the Magistrate's Court in the 
county court. The said County Solicitor shall also advise with and aid the Grand 
Jury of the county in its duties, and also the Coroner or Magistrates in inquisi- 
tions. The said County Solicitor shall not practice law in criminal cases in the 
Magistrate's Court of Spartanburg County, nor shall he appear for the defense 
in any criminal cases in the Court of General Sessions for said county. 
1930, XXXVI, 1117. 

§ 181Q. Duties of Magistrates — Clerk of Court. — The Magistrates of Spar- 
tanburg County are required to promptly file with the Clerk of Court all pa- 
pers in criminal prosecutions, triable in the countj^ court, and they shall make 
all bonds and recognizance of witnesses and defendants returnable to next en- 
suing term of said county court. It shall be the duty of the Clerk of the Court 
to notify the County Solicitor upon the filing of such papers and turn same 
over to him. The said Magistrates are required to make a list of such witnesses 
as they deem material on the back of the arrest warrant, and while he shall be 
careful to furnish the names of witnesses deemed necessary to establish the charge 
in the warrant, he shall be equally careful not to furnish the names of any wit- 
nesses whose testimony is immaterial. 

1930, XXXVI, 1117. 

§ 181R. Grand Jury. — The grand jury drawn for and serving in the Court 
of General Sessions of Spartanburg Count}" shall constitute the Grand Jury 
of the said county court and shall so serve and act upon all necessary indict- 
ments of the said court, and the said Grand Jury shall attend upon the sessions 
of the said county court, whenever notified so to do by request of the County 
Solicitor and order of the County Judge; the County Solicitor shall appear at 
the regular terms of the Court of General Sessions and may hand out indict- 
ments at that time to the Grand Jury for the county court cases, and the Grand 
Jury shall act upon such indictments as in indictments presented for cases in 
the Court of General Sessions. The Grand Jurors shall receive as compensation 
for their services in attendance upon the county court the same pay as allowed 
by law in the Court of General Sessions. 

1930, XXXVI, 1117. 

§ 181S. Certain Civil Causes May Be Heard by Judge. — In actions on the 
civil side of court in which reference to the Master may, under the law, now be 
necessary, said actions may be heard and determined by the said County Judge, 
either in term time or at chambers, without referring the same to the said Mas- 
ter, upon testimony taken before the said Judge ; and likewise in all cases where 
a jury trial may not be necessary or required. All sales to be made by the Mas- 
ter, as in cases before the Court of Common Pleas. 

1930, XXXVI, 1117. 

§ 181T. Stenographer— Salary— Duties. — The said County Judge shall ap- 
point for said county court an official stenographer, to serve at his pleasure, 



§ 181U Code of Civil Procedure 58 

who shall attend upon the sessions of the said court and perform the same duties 
in connection therewith as are performed by the stenographers in the Circuit 
Court. That the said stenographer shall receive for such services a salary of 
nine hundred ($900.00) dollars per annum, payable monthly by the county, 
and the said stenographer shall furnish transcripts of the proceedings upon re- 
quest of the parties litigant, and shall be entitled to receive as compensation 
therefor a fee of five cents per hundred words for all transcripts so furnished, 
which shall be paid by the litigant requesting the same, except in criminal cases 
where the defendant may satisfy the court that he is unable to pay for such 
transcript, when the same shall be furnished without fee by the Court Steno- 
grapher ; and the said stenographer shall write out for the County Judge and the 
County Solicitor without charge such records, excerpts and transcripts as they 
may require. 

1930, XXXVI, 1117. 

§ 181U. Transfer Cases to County Court from Common Pleas — Vice Versa 
— Change of Venue. — Any case pending in the Court of Common Pleas upon 
the establishment of the county court for Spartanburg County may be trans^ 
ferred to the county court for trial upon motion, after five days' notice to the 
opposite party, to be heard in open court or at chambers, if it shall appear that 
such action may have been brought originally in the county court, if then es- 
tablished, and if, in the opinion of the Court or Circuit Judge at Chambers, 
it would serve the best interests of all parties concerned for such case to be 
transferred for such trial to the county court ; and likewise any case, within the 
jurisdiction of the county court, that may be hereafter brought in the Court of 
Common Pleas in the said county may be transferred to the county court for 
trial ; and any case brought in the county court may be transferred to the Court 
of Common Pleas for trial upon motion of either party, as herein provided for 
the transfer of cases to the county court, by the County Judge, if in the opinion 
of such County Judge, it would serve the best interests of all parties concerned 
for such case to be transferred for trial to the Court of Common Pleas. The 
County Judge may change the place of trial of any case pending in his Court 
to the Circuit Court in another county in the same manner as provided by law 
in respect to changing place of trial in cases pending in the Circuit Court. 

1980, XXXVI, 1117. 

§ 181V. Costs. — All costs and disbursements allowed the prevailing party, 
and all costs and fees allowed officers of the Court in actions in the Court of 
Common Pleas, shall be allowed in actions in the county court. 

1930, XXXVI, 1117. 

§ 181W. Location. — The County Board of Control for Spartanburg County 
shall make provisions for holding the sessions of the said county court by setting 
apart suitable quarters in the Spartanburg County court house therefor. 

1930, XXXVI, 1117. 



59 Code op Civil Procedure § 182 

CHAPTER 4 

Probate Court 

182.^ Sessions. 201. Times and Places for liolding Courts. 

183.' A Court of Record. 202. Always open. 

184. Clerk. 203. Adjournment. 

185. Jurisdiction. 204. Papers filed with Auditor. 

186. Guardians. 205-13, 228. Appeals. 

187-8. County in which Proceedings Insti- 214. Manner of Commencing Proceedings, 

tuted. 215. Rules by Supreme Court. 

189. Small Estates. 216. Contempt. 

190. Final Discharge. 217. Enrollment of Decrees. 

191. 199, 200. Guardianship. 218. Index of Decrees. 

192. Disqualification of Judge. 219. Executions. 

193. Oath. 220, 222-26. Minors. 

194. Warrants and Processes. 221. Witnesses. 

195. Contumacy. 227. Violation of Court Order. 

196. Depositions. 229. Fees. 

197. Exclusive Jurisdiction. 230-31. Orphanage. 

198. No Collateral Impeachment. 232. Juvenile Courts in certain Counties. 

233. Children's Court for Greenville County. 

§ 182. Sessions. — A Court of Probate is hereby established in each of the 

several counties in this State, which shall hold a session on the first Monday in 

each month, at or near the Court House, and continue thereafter so long as 

the business may require. 

Civ. P. '22. § 163 ; Civ. P. '12, § 39 ; Civ. P. '02, § 34 ; 1868, XIV, 76 ; 1869, XIV, 241 ; 
1870, XIV, § 35. 

§ 183. Court of PLecord— Clerk.— The Court of Probate shall be a Court of 
Eecord, and have a seal; may appoint a Clerk, and may remove him at pleas- 
ure ; and on failure of the Court to appoint such Clerk, the Judge of the Court 
shall perform all the duties of Clerk : Provided, That no person holding the of- 
fice of Clerk of the Probate Court under and by virtue of the appointment of 
the Probate Judge of any County of this State, shall practice in such Court as 
an attorney or counsellor at law : Provided, That in Anderson, Richland, Spar- 
tanburg and Horry Counties, when so qualified, by appointment by the Probate 
Judge for said Counties, the Clerk may do and perform any and all of the duties 
appertaining to the office of his principal. The said Probate Judge for said Coun- 
ties may take such bond and security from his Clerk as he shall deem necessary 
to secure the faithful discharge of the duties of the appointment, but shall in all 
cases be answerable for the neglect of duty or misconduct in office of his Clerk. 

Civ. P. '22. § 164 : Civ. P. '12, § 40 ; Civ. P. '02, § 35 ; 1870, XIV, 36 ; 1877, XVI, 233, 
1918, XXX, 833 ; 1927, XXXV, 103, 251 ; 1929, XXXVI, 78. 

§ 184. Duties of Clerk.— The Clerk of the Court of Probate shall keep a 
true and fair record of each order, sentence, and decree of the Court, and of all 
other things proper to be recorded ; and on the legal fees being paid, shall give 
true and attested copies of the files and proceedings of the Court. All copies 
so attested shall be legal evidence in the Courts of this State. 

Civ. P. '22, § 165 ; Civ. P. "12, § 41 ; Civ. P. '02, § 36 ; 1870, XIV, § 37. 

§ 185. Jurisdiction of Judges. — Every Judge of Probate, in his county, 
shall have jurisdiction in all matters testamentarj^ and of administration, in 
business appertaining to minors, and the allotment of dower, in cases of idiocy 
and lunacy, and of persons non compos mentis. 

Civ. P. '22, § 166 ; Civ. P. '12, § 42 ; Civ. P. '02, § 37 ; 1870, XIV, § 38. 

§ 186. In Relation to Guardians. — The Judge of Probate shall have juris- 
diction in relation to the appointment and removal of guardians of minors, in- 



§ 187 Code of Civil Procedure 60 

sane and idiotic persons, and persons non compos mentis, and in relation to the 
duties imposed by law on such guardians, and the management and disposition 
of the estates of their wards. He shall exercise original jurisdiction in relation 
to trustees appointed by will. 

Civ. P. '22, § 167 ; Civ. P. '12, § 43 ; Civ. P. '02, § 38 ; 1870, XIV, § 39 ; Con., Art. V, § 19. 

§ 187. Administration and Probate of Wills. — The probate of the will and 
the granting of administration of the estate of any person deceased shall belong 
to the Judge of Probate for the county in which such person was last an in- 
habitant ; but if such person was not an inhabitant of this State, the same shall 
belong to the Judge of Probate in any county in which the greater part of his 
or her estate may be. 

Civ. P. '22, § 168 ; Civ. P. '12, § 44 ; Civ. P. '02, § 39 ; 1870, XIV, § 40. 

§ 188. Settlement of Estate in County Where Will Proved — Sale of Real 
Estate. — All proceedings in relation to the settlement of the estate of any per- 
son deceased shall be had in the Probate Court of the county in which his will 
was proved or administration of estate was granted. And whenever it shall 
appear to the satisfaction of any Judge of Probate that the personal estate of 
any person deceased is insufficient for the payment of his debts, and all per- 
sons interested in such estate being first summoned before him, and showing no 
cause to the contrary, such Judge of Probate shall have power to order the sale 
of the real estate of such person deceased, or of so much thereof as may be 
necessary for the payment of the debts of such deceased person, upon such 
terms and in such manner as he may think best ; may grant orders of injunction 
to stay actions or proceedings against the executors or administrators of such 
deceased person, and such other orders as may be necessary to secure the mar- 
shalling and administering the assets of such deceased person, such proceedings 
to be by summons and complaint, the practice wherein shall conform as nearly 
as may be to the form and practice in the Courts of Common Pleas of this State. 

Civ. P. '22, § 169 ; Civ. P. '12, § 45 ; Civ. P. '02, § 40 ; 1870, XIV, § 41 ; 1873, XV, 496. 

§ 189. Certain Probate Notices or Citations Not Required to Be Published. 

— It shall not be necessary to publish in any newspaper, any notice or citation 
relating to any estate in the Courts of Probate, where the value of such estate 
or estates, does not exceed two hundred dollars : Provided, That in such cases the 
notices required by law shall be posted at the door of the court house of the 
county where such estate or estates may be situated, for the time required by 
law. 

Civ. P. '22, § 170; Civ. P. '12, § 46; XX, 1911, XXVIII, 135. 

§ 190. When to Grant Discharge to Administrators, Etc. — It shall not be 
lawful for any Judge of Probate in this State to grant a final discharge to any 
executor, administrator, trustee, guardian, or committee, unless such executor, 
administrator, trustee, guardian or committee shall have finally accounted for 
the estate in his hands, and have given notice in a newspaper of the county (if 
there be no newspaper published in the county, then in some newspaper having 
the greatest circulation therein) for the space of at least one month, that on a 
day certain application will be made to the said Judge of Probate for a final 
discharge. No such discharge shall affect any distributee, legatee, cestui que trust, 
ward, or lunatic, who has not been made a party to such application, either by 
personal service of the notice, or by publication in the mode provided for absent 
defendants. 

Civ. P. '22, § 171 ; Civ. P. '12, § 47 ; Civ. P. '02, § 41 ; 1869, XIV, 263, § 1 ; 1894, XXI, 
719. 



61 Code of Civil Procedure § 191 

§ 191. Proceedings Relative to Estates Under Guardianship. — All proceed- 
ings in relation to the property or estate of any person under guardianship shall 
be had in the Court of Probate of the county in which the guardian was ap- 
pointed. 

Civ. P. '22, § 172 ; Civ. P. '12, § 48 ; Civ. P. '02, § 42 ; 1870, XIV, § 42. 

§ 192. Judges Not to Act When Interested — When Judges of Adjoining 
County to Act. — No Judge of Probate shall act as such in the settlement of any 
estate wherein he is interested as heir or legatee, executor or administrator, or 
as guardian or trustee of any person ; in every such case the Judge of Probate 
of any adjoining county shall have jurisdiction, and it shall be his duty, upon 
application, to attend at some term of the Court of Probate in which such case 
may be pending, which shall not interfere with the duties of his own county, and 
hear and determine such case. 

Civ. P. '22, § 173; Civ. P. '12, § 49; Civ. P. '02, § 43; 1870, XIV, § 43. 

§ 193. Power to Administer Oath. — The Judge or Clerk of the Probate 
Court shall have power to administer all oaths necessary in the transaction of 
business before the Probate Court, and all oaths required by law to be admin- 
istered to persons executing trusts under the appointment of said Court. 

Civ. P. '22, § 174; Civ. P. '12, § 50; Civ. P. '02, § 44; 1870, XIV, § 44. 

§ 194. Probate Court May Issue Warrants and Processes. — Probate Courts 
may issue all warrants and processes, in conformity to the rules of law, which 
may be necessary to compel the attendance of witnesses, or to carry into effect 
any order, sentence, or decree of such Courts, or the powers granted them by 
law. 

Civ. P. '22, § 175; Civ. P. '12, § 51; Civ. P. '02, § 45; 1870, XIV, § 45. 

§ 195. In Cases of Contumacy, May Commit to Jail. — If any person shall 
refuse or neglect to perform any lawful order, sentence, or decree of a Pro- 
bate Court, such Court may issue a warrant, directed to any Sheriff or Con- 
stable in the State, requiring him to apprehend and imprison such' person in 
the common jail of the county, and if there be no jail in the county, then in the 
jail of the adjoining county, until he shall perform such order, sentence or de- 
cree, or be delivered by due course of law. 

Civ. P. '22, § 176 ; Civ. P. '12, § 52 ; Civ. P. '02, § 46 ; 1870, XIV, § 46. 

§ 196. When Deposition May Be Taken and Used. — AVhen a witness wdiose 
testimony is necessary to be used before any Probate Court shall reside out of 
this State, or out of the county where said Court is holden, or more than thirty 
miles from the county seat or by reason of age or bodily infirmity, shall be 
unable to attend in person, the Court may issue a commission to one or more 
competent persons to take the testimony of such witness ; and depositions taken 
according to the provisions of the law for taking depositions to be used on the 
trial of civil causes may be used on the trial of any question before the Probate 
Court where such testimony may be proper. 

Civ. P. '22, § 177; Civ. P. '12, § 53; Civ. P. '02, § 47; 1870, XIV, § 47. 

§ 197. Exclusive Jurisdiction After Once Acquired. — When any Probate 
Court shall have first taken cognizance of the settlement of the estate of a de- 
ceased person, such Court shall have jurisdiction of the disposition and settle- 
ment of all the personal estate of such deceased person to the exclusion of all 
other Probate Courts. 

Civ. P. '22, § 178 ; Civ. P. '12, § 54 ; Civ. P. '02, § 48 ; 1870, XIV, § 48. 



§198 Code of Civii, Pkocedure 62 

§ 198. Jurisdiction Not to Be Collaterally Impeached. — The jurisdiction 

assumed by any Probate Court in any case, so far as it depends on the place of 
residence or the location of the estate, shall not be contested in any suit or pro- 
ceeding whatever, except in an appeal from the Probate Court in the original 
case, or when the want of jurisdiction appears on the record. 

Civ. P. '22, § 179; Civ. P. '12, § 55; Civ. P. '02, § 49; 1870, XIV, § 49. 

§ 199. When Minor May Choose Guardian — Guardian Interested — Where 
Appointed. — When, by law, a guardian is required to be appointed of a minor, 
who is interested as heir or legatee, or representative of such heir or legatee, 
in any estate which is in a course of settlement, such guardian shall be ap- 
pointed by the Probate Court before which such estate is in course of settle- 
ment ; but afterwards, if the minor shall reside in another county, and is of the 
age of fourteen years, he may choose and have a guardian appointed in the 
county where he shall reside ; and in that case the powers of the former guard- 
ian shall cease, and to such proceedings he shall be made a party. In all other 
cases, guardians shall be appointed by the Probate Court of the county where 
the persons for whom the gurdian shall be appointed shall reside. 

Civ. P. '22, § 180 ; Civ. P. '12, § 56 ; Civ. P. '02, § 50 ; 1870, XIV, § 50. 

§ 200. Authorized to Permit Sale and Settle Accounts of Guardian. — The 

Probate Court by which a guardian shall be appointed shall have jurisdiction of 
the estate of the ward, and shall be alone authorized to permit the sale of such 
estate, and settle such guardian's accounts. 

Civ. P. '22, § 181 ; Civ. P. '12, § 57 ; Civ. P. '02, § 51 ; 1870, XIV, § 51. 

§ 201. Judges May Appoint Times and Places for Holding Courts. — Except 
as provided in Section 182 of this Chapter, the Probate Court in each county 
shall appoint such times and places for holding Courts, or for hearing any spec- 
ial matter, as shall be judged most convenient for all persons interested, and 
shall give notice of such times and places to the parties interested. 

Civ. P. '22, § 182 ; Civ. P. '12, § 58 ; Civ. P. '02, § 52 ; 1870, XIV, § 52 ; 1873, XV, 496. 

§ 202. Open at All Times for Certain Business. — The Probate Court shall 
be deemed open at all times for the transaction of ordinary business which may 
be necessary, when previous notice is not required to be given to the persons 
interested. 

Civ. P. '22, § 183; Civ. P. '12, § 59; Civ. P. '02, § 53; 1870, XIV, § 53. 

§ 203. Adjournment of Coujrt^ — When by Clerk. — A Probate Court may be 
adjourned as occasion may require; and when the Judge is absent at the time 
for holding a Court, the Clerk may adjourn it. 

Civ. P. '22, § 184 ; Civ. P. '12, § 60 ; Civ. P. '02, § 54 ; 1870, XIV, § 54. 

§ 204. Probate Judge to File with County Auditor Descriptions of Real 
Estate— of Estates— Proviso. — The Judge of Probate shall file with the Coun- 
ty Auditor of his county within ten days after the receipt thereof a copy of the 
description of all real estate filed with him by any executor, executrix, admin- 
istrator, administratrix, or trustee, together with the name or names of the party 
or parties filing the same, together with the name of the deceased person, to 
whom such real estate belonged : Provided, That in all case where real estate 
is located in more than one county the Judge of Probate shall certify to the 
Auditor in any county where such deceased person may have had real estate at 
the time of his death. 

1923, XXXIII, 117. 



63 Code of Civil Procedure § 205 

§ 205. Appellate Jurisdiction of Circuit Court. — The Circuit Court shall 
have appellate jurisdiction of all matters originally within the jurisdiction of 
the Probate Court. 

Civ. P. '22, § 185 ; Civ. P. '12, § 61 ; Civ. P. '02, § 55 ; 1870, XIV, § 55. 

§ 206. Jurisdiction of Supreme Court in Probate Matters. — The Supreme 
Court shall have jurisdiction of all questions of law arising in the course of the 
proceedings of the Circuit Court, in probate matters, in the same manner as 
provided by law in other cases. 

Civ. P. '22, § 186 ; Civ. P. '12, § 62 ; Civ. P. '02, § 56 ; 1870, XIV, § 56. 

§ 207. Appeal to Circuit Court to Be Taken Within Fifteen Days. — Any 

person interested in any final order, sentence, or decree of any Probate Court, 
and considering himself injured thereby, may appeal therefrom to the Circuit 
Court in the same county, at the stated session next after such appeal. The 
grounds of appeal shall be filed in the office of the Probate Court, and a copy 
thereof served on the adverse party, within fifteen days after notice of the de- 
cision appealed from. 

Civ. P. '22, § 187 ; Civ. P. '12, § 63 ; Civ. P. '02, § 57 ; 1870, XIV, § 57 ; 1839, XI, 60, § 13. 

§ 208. Certified Copies of Record to Be Filed in Circuit Court. — The per- 
son ajDpealing shall procure and file in the Circuit Court to which such appeal is 
taken a certified copy of the record of the proceedings appealed from, and of 
the grounds of the appeal filed in the Probate Court, together with the proper 
evidence that notice has been given the adverse party according to law. 

Civ. P. '22, § 188; Civ. P. '12, § 64; Civ. P. '02, § 58; 1870, XIV, § 60. 

§ 209. Proceedings Stayed by Appeal. — When an appeal, according to 
law, is taken from any sentence or decree of the Probate Court, all proceedings 
in pursuance of the order, sentence, or decree appealed from, shall cease until the 
judgment of the Circuit or Supreme Court is had ; but if the appellant in writ- 
ing waives his appeal before the entry of such judgment, proceedings may be had 
in the Probate Court as if no appeal had been taken. 

Civ. P. '22, § 189 ; Civ. P. '12, § 65 ; Civ. P. '02, § 59 ; 1870, XIV, § 61. 

§ 210. How Circuit Court May Proceed to Trial. — When such certified 
copy shall have been filed in the Circuit Court, such Court shall proceed to the 
trial and determination of the question, according to the rules of law; and if 
there shall be any question of fact or title to land to be decided, issue may be 
joined thereon under the direction of the Court, and a trial thereof had by 
jury. 

Civ. P. '22, § 190 ; Civ. P. '12, § 66 ; Civ. P. '02, § 60 ; 1870, XIV, § 62. 

§ 211. Appellant Neglecting to Enter Appeal Judgment Affirmed With 

Costs.^ — If the person appealing from the proceedings of the Probate Court, 
as provided in this Title, shall neglect to enter his appeal, the Circuit Court to 
which such appeal shall be taken, on motion, and producing attested copies of 
such appeal by the adverse party, shall affirm, the proceedings appealed from, 
and may allow costs against the appellant. 

Civ. P. '22, § 191 ; Civ. P. '12, § 67 ; Civ. P. '02, § 61 ; 1870, XIV, § 64. 

§ 212. Final Decision to Be Certified to Probate Court. — The final decision 
and judgment in cases appealed, as hereinbefore provided, shall be certified to 
the Probate Court by the Circuit Court or Supreme Court, as the case may be, 
and the same proceedings shall be had in the Probate Court as though such de- 
cision had been made in such Probate Court. 

Civ. P. '22, § 192 ; Civ. P. '12, § 68 ; Civ. P. '02, § 62 ; 1870, XIV, § 65. 



§ 213 Code of Civil Procedure 64 

§ 213. Probate Judge No Voice in Determining Appeal — When May Prac- 
tice Law. — No Judge of any Probate Court shall be admitted to have any 
voice in judging or determining any appeal from his decision, or be permitted 
to act as attorney or counsel thereon, or receive fees as counsel in any matter 
pending in the Probate Court of which he is judge : Provided, It shall be lawful 
for Judges of Probate to practice law in other Courts in such cases as are not 
cognizable in the Courts of Probate. 

Civ. p. '22, § 193 ; Civ. P. '12, § 69 ; Civ. P. '02, § 63 ; 1870, XIV, § 66. 

§ 214. Proceedings May Be Commenced by Petition. — Proceedings in the 
Court of Probate may be commenced by petition to the Judge of Probate for 
the county to which the jurisdiction of the subject matter belongs, or by com- 
plaint, briefly setting forth the facts or grounds of the application. A sum- 
mons shall be issued to the defendants in such proceedings, wherein the man- 
ner of service, time for answering, and other proceedings relating to the trial 
(except trial by jury), shall conform as nearly as may be to the practice in the 
Courts of Common Pleas as provided in this Code of Procedure. 

Civ. P. '22, § 194; Civ. P.' 12, § 70; Civ. P. '02, § 64; 1870, XIV, § 67. 

§ 215. Supreme Court to Make Kules — County Commissioners to Pro- 
vide Furniture, Etc., for Office. — The Supreme Court may, from time to time, 
make rules regulating the practice and conducting the business in the Courts of 
Probate, in all cases not expressly provided for by law ; and the County Com- 
missioners of each county shall provide all books necessary for keeping the 
records of such Court ; also a seal and necessary office furniture : Provided, Said 
furniture shall not exceed in cost the sum of one hundred dollars. 

Civ. P. '22, § 195 ; Civ. P. '12, § 71 ; Civ. P. '02, § 65 ; 1870, XIV, § 68. 

§ 216. May Punish for Contempt. — The Judge may keep order in Court, 
and punish any contempt of his authority in like manner as such contempt 
might be punished in the Circuit or Supreme Court. 

Civ. P. '22, §.196; Civ. P. '12, § 72; Civ. P. '02, § 66; 1870, XIV, § 69. 

§ 217. Enrollment of Decrees. — Any party in whose favor an order or de- 
cree for the payment of money may be made by a Court of Probate, may cause 
such order or decree to be enrolled at any time within one year after making 
the same, and for that purpose shall prepare and deliver to the Judge of Pro- 
bate a brief or abstract, setting forth the title of the proceedings wherein such 
order or decree was made, the parties thereto, and the date when the same was 
made ; also the date of the said order and the names of the parties bound thereby, 
together with such other particulars as may be necessary to identify the said 
order with the proceedings, and to exhibit the grounds for making the same and 
the operation and effect thereof; and the Judge of Probate shall annex thereto 
the said order or decree, or an exact copy thereof, certified by him, together 
with the time when the same was made and entered; and shaL endorse on the 
record the day of the month and year when the brief or abstract was lodged in 
his office, and shall deposit the same in a case in his office with the records per- 
taining to the cause. And no order or decree of any Court of Probate for the 
payment of money shall, as to third persons, without express notice, have any 
effect as a lien on the real estate of the person intended to be bound thereby 
but from the day when the said brief or abstract shall have been delivered to or 
lodged with the said Judge of Probate as aforesaid, and a transcript of the 
docket thereof in the index of money decrees hereinafter prescribed has been 
filed in the office of the Clerk of the Court of Common Pleas for the same conn- 



65 Code of Civil Procedure § 218 

ty and duly entered by said Clerk on the calendar of judgments kept ni his of- 
fice. Nor shall such order or decree rank as a judgment against the estate of any 
person deceased, unless such abstract was duly filed and indexed, and a transcript 
of the entry in the index tiled with the Clerk of the Circuit Court for the same 
County and duly docketed by the said Clerk on the calendar of judgments of the 
Court of Common Pleas before the death of such deceased person; except that 
the lien of decrees and orders for the payment of money made prior to Decem- 
ber 20, 1878, shall not be affected ; and after the transcript of the docket in the 
index of money decrees has been duly entered upon the calendar of judgments 
kept in the office of the Clerk of the Court of Common Pleas, such order or de- 
cree shall have like force and effect as judgments of the Courts of Common Pleas : 
Provided, That such enrollment of m\j order or decree for the payment of mon- 
ey shall not deprive any party thereto of the right to appeal therefrom; but 
when notice of such appeal shall be duly given, execution upon the said order or 
decree, issued as herein provided, shall be lodged to bind only, and shall not be 
enforced until such appeal shall have been dismissed; and if such order or de- 
cree shall be reversed, set aside, or modified on appeal, the enrollment thereof 
shall be amended or wholly vacated accordingly. 

Civ. P. '22, § 197 ; Civ. P. '12, § 73 ; Civ. P. '02, § 67 ; 1878, XVI, 710. 

§ 218. To Keep Index of Decrees Enrolled. — Every Judge of Probate shall 
provide and keep in his office an index of money decrees, in which every en- 
rolled order or decree for the payment of money shall be entered, with the 
names of everj^ partj^ or estate bound thereby, alphabetically arranged, to- 
gether with the names of the parties plaintiff, and (besides the title of the pack- 
age in which the order or decree is contained and the numbej in the package) 
shall exhibit the amount ordered to be paid, the costs (if any), date of enroll- 
ment, date of execution, and date of satisfaction, where satisfaction has been 
entered. Said book shall be of convenient size, of durable paper, and well bound, 
and the expense of providing the same shall be defrayed by the County Commis- 
sioners of the respective counties. 

Civ. P. '22, § 198 ; Civ. P. '12, § 74 ; Civ. P. '02, § 68 ; 1878, XVI, 711. 

§ 219. Empowered to Issue Executions. — Judges of the Probate Court are 
authorized and empowered to issue executions against property, when such 
process is necessary to carry into effect any order, sentence, or decree of such 
Court, or for costs accruing therein. And they may issue executions against 
property in their respective counties, to enforce decrees from the Probate 
Courts of other counties, upon a transcript of such decree, and certificate of en- 
rollment of the same, being filed in the office of the Probate Court from which 
such execution is to issue, and also in the office of the Clerk of the Court of 
Common Pleas for the county in which it is to issue. But no execution shall be 
issued by any Jtidge of Probate to enforce the collection of money under any 
order or decree of a Court of Probate until an abstract or brief has been pre- 
pared and filed according to the direction of Section 35 of this Chapter and the 
proper minute thereof has been entered in the index of money decrees, and the 
proper transcript of such minute has been filed in the office of the Circuit Court 
for the same county and entered upon the calendar of judgments of the Court 
of Common Pleas kept in his office. And when any such execution has been duly 
returned satisfied to the office of the Judge of Probate from whence it issued it 
shall be the duty of the Judge of such Court of Probate to have such satisfaction 
recorded upon the proper transcript in the office of tne ClerK of the Circuit 
Court and entered upon the docket thereof on the calendar of judgments of the 



§ 220 Code of Civil Procedure 6G 

Court of Common Pleas kept in said Clerk's office. When no form of warrant 

or process is prescribed by statute or rules of Court the Probate Judge shall 

frame one in conformity to the rules of law and the usual course of proceedings 

in this State. Any Sheriff or Constable in this State shall execute the orders or 

process of said Court in the same manner as the orders or process of the Circuit 

or Supreme Courts. 

Civ. P. '22, § 199 ; Civ. P. '12, § 75 ; Civ. P. '02, § 69 ; 1870, XIV, § 71 ; 1872, XV, 23 ; 
1878, XVI, 458. 

§ 220. Duties and Powers of Probate Court in Relation to Minors En- 
larged and Defined. — Whenever a petition shall be presented to the Probate 
Court, supported by affidavits, either on knowledge or on information and be- 
lief, that any child within its jurisdiction under the age of eighteen years is 
destitute or homeless, or is a beggar, or whose home, by reason of cruelty, ne- 
glect or depravity on the part of its parents, or other person in whose care it 
may be, is an unfit place for such child, or that any child is being required to 
work contrary to law, or in an unreasonable degree, the conditions and circum- 
stances of the parents or person with whom it resides being considered; or is 
incorrigibly mischievous or vicious, or is a persistent truant from school, or 
habitually associates with criminals or vicious or immoral persons, or is grow- 
i]ig up in ignorance or idleness, or is in imminent danger of becoming vicious 
or criminal ; or whenever a report is made to the Probate Court by an officer of 
the law, as hereinafter provided, that any child under the age of eighteen years 
is liable to arrest or has been arrested for a violation of law, the said Probate 
Court shall issue a summons to the child and to its parent or parents or person 
with whom it resides, or in case of a child under arrest, to the officer in whose 
custody he then is, also to show cause why the supervision, care or custody of 
the said child should not be assumed by that Court. Such summons shall be re- 
turnable within three days from the date of service. The issuing of such sum- 
mons shall not be a stay of any criminal proceedings which have been instituted 
against such child and which are referred to in said petition or report except 
as hereinafter provided. In case the child has parent or parents within the juris- 
diction of the Court with whom the child does not reside, but whose residence is 
known or can with reasonable diligence be ascertained, the said parent or par- 
ents shall be summoned to appear before the Court before the final disposition of 
the case. 

Civ. P. '22, § 201; Civ. P. '12, § 77; 1911, XXVII, 135, 136; 1912, XXVII, 762. 

§ 221. May Summon Witnesses. — The Probate Court shall have the power 
to summon before it any witnesses which it may deem necessary to a proper in- 
vestigation and determination of the allegations of the said petition or report. 

Civ. P. '22, § 202; 1912, XXVII, 763. 

§ 222. Report to Circuit Court. — Upon proof of the allegations of the 
petition the said Court shall have power to order such parent or parents or per- 
son with whom the child resides to do and perform such duties in regard to the 
support and control of the child as shall be lawful and right. In case it is found 
necessary to apply remedies beyond the constitutional powers of the Probate 
Court, the said Court shall certify the fact to the Court of Common Pleas, or 
to the Court of General Sessions, as the case may require, to act upon the same, 
and apply such remedies as may be lawful and right. 

Civ. P. '22, § 203; 1912, XXVII, 763. 

§ 223. May Appoint Custodian of Minors. — If after due hearing the Court 
shall assume the supervision, care or custody of the child, it shall require the 



67 Code of Civil Procedure § 224 

parent or parents or persons with whom it resides, and in the discretion of the 
Court, in addition to these or in lieu thereof, some suitable and proper person or 
persons to serve without compensation, and to be known as probation officer or 
officers, to look after said child and to report to the Court for as long a period 
and as often as the Court shall require, as to the treatment and conduct of the 
said child; and the child shall report to said probation officer or officers from 
time to time, as the Court may prescribe; and said probation officer or officers 
shall at all times have the right and power to investigate the surroundings, con- 
ditions, treatment and conduct of the child, and report same to the Court. 
Civ. P. '22, § 204; 1912, XXVII, 764. 

§ 224. May Revoke and Send to Orphan Asylum or Reformatory. — If at 

any time the Court shall find that the custody of the child should be taken from 
the parent or parents or person with whom it resides, it may bind over such child 
to some orphan asylum or other institution for the care of children, or to some 
responsible person or persons, in all cases to be first approved by the Court 
after due investigation, who will agree in writing to care for the child in a hu- 
mane manner and give it a reasonable amount of education, and to report to the 
Court at least once a year as to the treatment and conduct of the child, or in the 
discretion of the Court, the child, if colored, may be sent to the Reformatory, 
now located in Lexington County ; or if white, to the South Carolina Industrial 
School, now located in Florence County: Provided, That no boy or girl under 
the age of twelve (12) years shall be confined in any of the reformatories or in- 
dustrial schools in this State. 

Civ. P. '22, § 205; 1912, XXVII, 764; 1926, XXXIV, 1728. 

§ 225. May Remand for Trial. — If it appear to the Court that the child is 
in(iorrigibly criminal or has committed a crime which demands punishment 
rather than reformative discipline, the Court shall remand it to the proper 
Magistrate, Municipal Court or Sessions Court for trial and punishment. 

Civ. P. '22, § 206; 1912, XXVII, 764. 

§ 226. Form of Arrest and Incarceration. — Upon the arrest of any child 
less than eighteen years of age, the arrest of the said child shall be reported to 
the Probate Court by the officer making the arrest as speedily as possible for in- 
vestigation and action under this Act. But if confinement be necessary before the 
case can be heard, the child shall not be incarcerated in the same room with adult 
criminals, but in a separate room of detention, and where the county or muni- 
cipal authorities have made or shall make suitable provision therefor, said room 
or rooms shall be outside the jail or guardhouse : Provided, Separate accommo- 
dations shall be provided for boys and girls and for white and colored. 

Civ. P. '22, § 207; 1912, XXVII, 764. 

§ 227. Penalty. — The neglect or refusal to obey the summons of the Pro- 
bate Court, or any lawful order made by it as here authorized shall be punish- 
able as now authorized by law for the violation of the orders and decrees of said 
Court. 

Civ. P. '22, § 208 ; 1912, XXVII, 765. 

§ 228. Appeals. — All orders made in pursuance of this Act by the Probate 
Court shall be subject to review on appeal by the petitioner, the child or its 
parents or the person with whom it resides, or in case the child is charged with 
a crime beyond the jurisdiction of a Magistrate by the State, in which last case 
it shall be the duty of the Probate Court promptly to certify, to the Solicitor 
of the Circuit, at his request, the testimony in the case, together with his find- 
ings and orders thereon. All appeals shall be to the Judge of the Circuit at 



§ 229 Code of Civil Procedure 68 

chambers, and shall be heard on the original papers. The appeal shall lie from 
the Circuit Court, but such appeal shall not act as a supersedeas unless the Cir- 
cuit Judge shall so order, stating in the order that the issue raised is in serious 
doubt, and that if his decree is erroneous, its enforcement might work serious 
harm. 

Civ. P. '22, § 209; 1912, XXVII, 765. 

§ 229. Fees. — The cost and fees shall be the same as those in Magistrate's 
Courts for investigations, to be paid by the county in which the case is heard. 
Civ. P. '22, § 210; 1912, XXVII, 765. 

§ 230. Rights and Authority of Orphanage. — The said orphan asylum, and 
any orphanage, devoted to the relief of children who are destitute, abandoned 
or being raised in immoral and vicious surroundings, shall have full care and 
control over any child committed to it, as provided in Section 224 of this Chap- 
ter above; subject always to the right of the Courts to inquire into the pro- 
priety and sufficiency of the care and maintenance being provided for any such 
child, and to modify or to change the care and custody of any child, as the Court 
may deem proper. 

Civ. P. '22, § 211 ; Civ. P. '12, § 78 ; 1911, XXVII, 135, 136. 

§ 231. Orphanage May Intrust Children to Individual or Family. — Any 

such orphanage to which a child has been committed, as provided in the last pre- 
ceding Section and Section 224 of this Chapter, shall have the right to entrust 
any child, for its care, maintenance, rearing, education, and adoption to the care 
and custody of any individual or family, which it may deem proper, upon such 
guarantees as may be required by such orphanage. But this right shall be subject 
to the supervision, investigation and control of the Courts of Common Pleas ot 
said State of South Carolina, upon application made to such Courts. 
Civ. P. '22, § 212; Civ. P. '12, § 79; 1911, XXVII, 135, 136. 

§ 232. Jurisdiction of Probate Court in Counties Having a Population 
Between 85,000 and 100,000 as to Certain Minors.— (1) The Probate Court of 
counties having a population of between 85,000 and 100,000 according to the 
census of 1920, shall have exclusive original jurisdiction of any case of a child 
less than 16 years of age and of all other persons involved with or contributing 
to the dependency or delinquency of any child, residing in or being at this time 
within the said county or any city therein. 

(a) Who is delinquent or who violates any municipal or State law or ordi- 
nance or who is truant, unruly, wayward, or misdirected, or who is disobedient 
to parents or beyond their control, or who is in danger of becoming so ; or 

(b) Who is neglected, or who engages in any occupation, calling or exhibi- 
tion, or is found in any place where a child is forbidden by law to be, and for 
permitting which an adult may be punished by law, or who is in such condition 
or surroundings or under such improper or insufficient guardianship or control 
as to endanger the morals, health or general welfare of such child ; or 

(c) Who is dependent upon public support or who is destitute, homeless or 
abandoned, or whose custody is subject to controversy, or who is insane or 
feeble-minded or idiotic or epileptic or so far mentally deficient as to be unable 
to exercise proper control over his own affairs or whose mind is so deranged or 
impaired as to endanger the health, person or property of himself or others. 

When jurisdiction has been obtained in the case of any child, unless a Court 
order shall be issued to the contrary, or unless the child be committed to an in- 
stitution supported and controlled by the State, it shall continue for the pur- 
pose of this Section during the minority of the child. The duty shall be con- 



69 Code of Civil Procedure § 232 

stant upon the Court to give each subject in its jurisdiction such oversight and 
control in the premises as will conduce to the welfare of such child and to the 
best interest of the State. 

(2) Children's Courts. — There shall be established in each of said counties 
a separate part of the Probate Court for the hearing of cases coming within the 
provisions of this Section. Such Court shall be called the Children's Court of 
County. 

The Judge of the Probate Court of each of said counties is hereby appointed 
and authorized to act as Judge of the Children's Court in the hearing of cases 
coming within the provisions of this Section, in which case the child or children 
concerned therein reside in or at the time within such county, or any city there- 
in. Proceedings in such cases may be initiated before such Judge and in hearing 
such cases such Judge shall comply with all the requirements and conform to 
the procedure provided in this Section. 

(3) Meaning of Terms. — The term "Court" when used in this Section with- 
out modification, shall refer to the Children's Court to be established in each 
county as hereinabove provided. The term "Judge" v/hen used in this Section, 
shall refer to the Judge of the Probate Court acting as Judge of the Children's 
Court, or special Judge. The term "child" or "minor" when used herein shall 
mean any person less than 16 years of age. 

(4) Procedure of Court — Records — Use of Evidence — Section to be Lib- 
erally Constructed. — Children's cases are not to be heard according to the law 
of criminal procedure. Sessions of the Court shall be held at such times and in 
such places within the county as the Judge shall, from time to time, determine. 
In the hearing of any case coming within the provisions of this Section the gen- 
eral public shall be excluded and only such persons admitted thereto as have 
a direct interest in the case. Sessions of the Children's Court shall not be held in 
conjunction with any other business of any other Court, and children's cases 
shall not be heard at the same time as those against adults. 

The Court shall maintain a full and complete record of all cases brought be- 
fore it, to be known as the Children's Record. All records may be withheld 
from indiscriminate public inspection in the discretion of the Judge of the 
Court, but such record shall be open to inspection by the parents, guardians, or 
other authorized representatives of the child concerned. No adjudication under 
the provisions of this Section shall operate as a disqualification of any child for 
any public office, and no child shall be denominated a criminal by reason of such 
adjudication, nor shall such adjudication be denominated a conviction. 

Any disposition of any child under this Section or any evidence given in the 
proceedings of a Children's Court shall not be admitted in any subsequent, 
civil or criminal proceedings against the child. 

This Section shall be construed liberally and as remedial in character. The 
powers hereby conferred are intended to be general and for the purpose of ef- 
fecting the beneficial purposes herein set forth. It is the intention of this Sec- 
tion that in all proceedings under its provisions the Court shall proceed upon 
the theory that a child under its jurisdiction is the ward of the State and is sub- 
ject to the discipline and entitled to the protection which the Court should give 
such child under the circumstances disclosed in the case and that as far as prac- 
ticable the child shall be treated not as a criminal but as a child in need of aid, 
encouragement and guidance. 

(5) Petition.— Any person having knowledge or information that a child is 
within the provisions of this Section and subject to the jurisdiction of the Chil- 
dren 's Court, may file with the Court a petition verified by affidavit, stating the 



§ 232 Code of Civil Procedure 70 

alleged facts which bring such child within said provision. The petition shall set 
forth the name and residence of the child and of the parents, or the name and 
residence of the person having the guardianship, custody, or supervision of such 
child, if the same is known or ascertained by the petitioner, or the petition shall 
state that they are unknown, if that be the fact. 

(6) Investigations — Appearance may be Required — Expenses. — Upon the 
filing of the petition or upon the taking of a child into custody, the Court may 
forthwith or after an investigation by a probation officer or other person, cause 
to be issued a summons signed by the Judge or the Clerk of the Court directed 
to the child, unless such child has been taken into custody, and to the parents, or 
in ease there is no parent, to the person having the guardianship, custody or su- 
pervision of the child, or the person with whom the child may be, requiring them 
to appear with the child at the place and time stated in the summons to show 
cause why the child should not be dealt with according to the provisions of this 
Section. 

The Judge may, in his discretion, authorize the payment of necessary travel- 
ing expenses incurred by any witness or persons summoned or otherwise re- 
quired to appear at the hearing of any case coming within the provisions of 
this Section. 

(7) Disposition of Child Pending Hearing. — If it appears from the petition 
that the child is embraced within subdivision (a) of Subsection 1 of this Sec- 
tion, or is in such condition or surroundings that the welfare of the child re- 
quires that its custody be immediately assumed, the Court may endorse or cause 
to be endorsed upon the summons a direction that the officer serving the same 
shall at once take such child into custody. 

In the case of any child who has been taken into custody or pending the final 
disposition of any case, the child may be released in the custody of a parent or 
other person having charge of the child or in the custody of a probation officer 
or other person appointed by the Court to be brought before the Court at the 
times designated. Any child embraced in this Act may be admitted to bail as 
provided by law. When not released as herein provided such child, pending the 
hearing of the case, shall be detained in such place of detention as is hereinafter 
provided for. 

(8) Service of Summons — Procedure upon Disobedience. — Service of sum- 
mons shall be made personally by reading to and leaving with the person sum- 
moned a true copy thereof : Provided, That if the Court is satisfied that reason- 
able but unsuccessful effort has been made to serve the summons personally 
upon any of the parties named therein, or if it shall appear to the satisfaction 
of the Court that it is impracticable to serve a summons personally upon any of 
them, the Court may make an order providing for service of the summons by 
registered mail or by publication or otherwise in such manner as the Judge shall 
determine. It shall be sufficient to confer jurisdiction if service is effected at any 
time before the time fixed in the summons for the return thereof, but the Court, 
if requested by the child or a parent, or in case there is no parent, by the person 
having the guardianship, custody or supervision of the child, shall not proceed 
with the hearing earlier than three days after the service. Failure to serve a 
summons upon any person other than said child shall not impair the jurisdic- 
tion of the Court to proceed in case arising under subdivision (2) subsection 1 
of this Section : Provided, That for good cause shown the Court shall have made 
an order dispensing with such service. 

If the person summoned as herein provided shall fail without reasonable 
cause to appear and abide the order of the Court or bring the child, he may be 



71 Code of Civil Procedure § 232 

proceeded against as for contempt of Court. In case the summons cannot be 
served or the party served fails to obey the same, and in any case when it shall 
be made to appear to the Court that such a summons will be ineffectual, or that 
the welfare of the child requires that he shall be brought forthwith into the 
custody of the Court, a warrant may be issued on the order of the Court either 
against the parent or guardian or otTier person having custody of the child or 
with whom the child may be or against the child himself. 

The Sheriff or other lawful officer of the county in which the action is taken 
shall serve all papers as directed by the Court, but the papers may be served by 
any person delegated by the Court for that purpose. 

(9) Hearing of Causes — Adjudication, Orders, etc. — Upon return of the 
summons or other process or after any child has been taken into custody ; at the 
time set for the hearing, the Court shall proceed to hear the case in a summary 
manner : Provided, That the Judge has been supplied with and has read a writ- 
ten report of the preliminary investigation made by the Probation Officer of the 
Court. 

The Court may adjourn the hearing from time to time and inquire into the 
habits, surroundings, conditions, and tendencies of the child so as to enable the 
Court to render such order or judgment as shall best conserve the welfare of the 
child and carry out the objects of this Section, In all cases the nature of the pro- 
ceedings shall be explained to the child and to the parents or the guardian or 
person having the custody or the supervision of the child. At any stage of the 
case the Court may, in its discretion, appoint any suitable person to be the 
guardian ad litem of the child for the purposes of the proceeding. 

At the discretion of the Judge, he may appoint a woman to hear and decide 
individual or all cases of girls brought before the Court. 

The Court, if satisfied that the child is in need of the care, protection, or dis- 
cipline of the State, may so adjudicate and may find the child to be delinquent, 
neglected, or in need of more suitable guardianship. Thereupon the Court may 

(a) Place the child on probation subject to the conditions provided here- 
inafter ; or 

(b) Commit the child to the custody of a relative or other fit person of good 
moral character, subject, in the discretion of the Court, to the supervision of a 
probation officer and the further orders of the Court ; or 

(c) Commit the child to the custody of the State Board of Public Welfare, to 
be placed by such board in a suitable family home and supervise therein ; or 

(d) Commit the child to a suitable institution maintained by the State or any 
subdivision thereof, or to any suitable private institution, society or association 
incorporated under the laws of the State and approved by the State Board of 
Public Welfare authorized to care for children or to place them in suitable family 
homes; or 

(e) Render such further judgment or make such further order of com- 
mitment as the Court may be authorized by law to make in any given case. 

(f ) If a child of fourteen years of age be charged with a felony, for which the 
punishment as now fixed by law cannot be more than ten years in prison, his 
case shall be investigated by the probation officer and the Judge of the Juvenile 
Court, unless it appears to the Judge of the Juvenile Court that the case should 
be brought to the attention of the Judge of the Circuit Court, in which case the 
child shall be held in custody or bound to the next term of the Circuit Court as 
now provided by law. 

(10) Children not to be Confined with Adults — Violation a Misdemean- 
or — Detention Home. — No child coming within the provisions of this Section 



§ 232 Code of Civil Procedure 72 

shall be placed in any penal institution, jail, lock-up, or other places where adults 
convicted of crime are committed or are under arrest and charged with crime. 

An}^ person placing a child or accepting a child for placement in such penal 
institution, jail, lock-up, or in any other place where adult criminals or adults 
charged with or arrested for a crime are confined shall be guilty of a misde- 
meanor. 

Provisions shall be made for the temporary detention of such children in a 
detention home to be conducted as an agency of the Court for the purpose of this 
Section, or the Judge may arrange for the boarding of such children temporarily 
in a private home or homes in the custody of som.e fit person or persons subject 
to the supervision of the Court, or the Judge may arrange with any incorporated 
institution, society or association maintaining a suitable place of detention for 
children for the use thereof as a temporary detention home. 

In case a detention home is established as an agency of the Court it shall be 
furnished and carried on, * so far as possible, as a family home in charge of a 
superintendent or matron who shall reside therein. The Judge of the Children's 
Court may appoint a matron or superintendent or both, approved by the State 
Board of Public Welfare, and other necessary employees for such home in the 
same manner as probation officers are appointed under this Section, their sal- 
aries to be fixed by the County Delegation on recommendation of the Judge and 
paid in the same manner as the salaries of probation officers. The necessary 
expenses incurred in maintaining such detention home shall be a public charge. 

In case the Judge shall arrange for the boarding of children temporarily de- 
tained in private homes, a reasonable sum for the board of such children, while 
temporarily detained in such homes, shall be paid by the county in which such 
child shall reside or may be found. 

In case the Judge shall arrange with any incorporated institution, society or 
association for the use of a detention home maintained by such institution, society 
or association, he shall enter an order which shall be effectual for that purpose 
and a reasonable sum shall be appropriated by the County Commissioners for 
the compensation of such institution, societj^ or association for the care of 
children or found within the county who may be detained therein. 

(11) Probation Officers. — The Judge of the Juvenile Court in each of the 
above counties shall appoint a suitable person as Chief Probation Officer, who 
shall serve under his direction. The appointment of such Probation Officer shall 
be approved by the State Board of Public Welfare. 

The Judge appointing any Probation Officer may discharge any Probation 
Officer for cause. 

The salary of the Chief Probation Officer of the county shall be $1,800.00 per 
year, which salary shall be paid by warrants issued by the County Supervisor 
from the general county funds : Provided, That no person shall be paid a salary 
as Probation Officer in any county without a certificate of qualification from the 
State Board of Public Welfare. 

The State Board of Public Welfare shall establish rules and regulations pur- 
suant to which appointments hereunder shall be made to the end that such ap- 
Dointments shall be based upon merit only. 

The appointment of a Probation Officer shall be in writing and one copy of 
the order of appointment shall be delivered to the officer so appointed and the 
other filed in the office of the State Board of Public Welfare. 

(12) Probation— Terms — Revocation. — When the Court places any child or 
adult on probation as provided herein, it shall determine the conditions of pro- 
bation which may be modified by the Court at any time. A child shall remain 



73 Code of Civil Procedure § 232 

on probation for such period as the Court shall determine during the minority 
of such child. An adult shall remain on probation for such period as the Court 
shall determine, not to exceed five years. The conditions of probation shall be 
such as the Court shall prescribe, and may include among other conditions, any 
or several of the following : That the probationer (a) shall indulge in no unlawful 
or injurious habits; (b) shall avoid places or persons of disreputable or harmful 
character; (c) shall report to the probation officer as directed by the Court or 
probation officer; (d) shall permit the probation officer to visit him in a reason- 
able manner at his place of abode or elsewhere; (e) shall answer any reasonable 
inquiries on the part of the probation officer concerning his conduct or condi- 
tion; (f) shall, if a child of compulsory school age, attend school regularly; 
(g) shall, if an adult or a child who does not attend school, work faithfully 
at suitable employment; (h) shall remain or reside within a specified place or 
locality; (i) shall pay a fine in one or several sums; (j) shall make restitution 
or reparation to the aggrieved parties for actual damages or losses caused by an 
offense upon such conditions as the Court shall determine; and (k) shall make 
payment for the support of any lawful dependents as required by the Court. 
Any person on probation may at any time be required to appear before the 
Court, and in case of his failure to do so when properly notified by the probation 
officer, the Court may issue a warrant for his arrest. In the case of a child on pro- 
bation, if the Court believes that the welfare of such child will thereby be pro- 
moted, the probation may be revoked at any time, and the Court may make such 
other disposition of the child as it may have made at the time the child was placed 
on probation. An adult on probation who violates anj'^ of the conditions thereof 
may be arrested upon a warrant issued by the Court and the Court may impose 
any penalties which it might have imposed at the time the defendant was placed 
on probation. 

(13) Duties of Probation Officers. — It shall be the duty of a probation 
officer to make such investigations before, during or after the trial or hearing 
of any case coming before the Court as the Court shall direct and shall report 
thereon in writing. The probation officer shall take charge of any child before 
or after the trial or hearing when so directed by the Court. The probation of- 
ficer shall furnish to each person released on probation under his supervision a 
written statement of the conditions of probation, and shall instruct the probation- 
er and other persons responsible for the welfare of the probationer regarding 
same, and shall endorse all the conditions of probation. Such officer shall keep 
informed concerning the conduct and condition of each person on probation 
under his supervision hy visiting, requiring of reports and in other ways and 
shall report upon the progress of each case under his supervision at least monthly 
to the Court. Such officer shall use all suitable methods not inconsistent with 
the conditions imposed by the Court to aid and encourage persons on probation 
and to bring about improvements in their conduct and condition. 

Such officer shall keep detailed records of his work. He shall keep accurate 
and complete accounts of all moneys collected from persons under his super- 
vision ; he shall give receipts therefor, and shall make at least monthly returns 
thereof ; such officer shall make such report to the State Board of Public AVelf are 
as it may from time to time require, and shall perform such other duties as the 
Court under whose direction such officer is serving shall direct. Every proba- 
tion officer shall have all the powers of a peace officer within the jurisdiction 
of the Court which he serves. With the approval or under the direction of the 
Judge of the Court in which a probation officer is serving, such officer is author- 
ized and empowered to set as probation officer over any person on probation 



§ 232 Code of Civil Procedure 74 

transferred to his supervision from any other Court, and may act as parole 
officer over any person released from a correctional institution when requested 
to do so by the authorities thereof and when authorized so to act by the Judge 
of the Court in which such probation officer is serving. 

(14) Support of Children after Commitment. — "Whenever any child is com- 
mitted by the Court to the custody of an institution, association, society or per- 
son other than his parent or guardian, compensation for the care of such child, 
when approved hy the order of the Court, shall be a charge upon the county, 
but the Court may at the issuance and service of an order to show cause on the 
parent or other person having the duty under the law to support such child 
adjudge that such parent or other person shall pay in such manner as the Court 
may direct, such sum as will cover in the whole or in part the support of such 
child, and wilful failure to pay such sum may be punished as a contempt of 
Court. 

(15) Recognition of Religious Faiths. — In committing any child to an insti- 
tution or other custodial agency other than one supported and controlled by the 
State or in placing the child under any guardianship other than that of its 
natural guardians, the Court shall, as far as practicable, select as the custodial 
agency an institution, society or association governed by persons of like religious 
faith as the parents of such child or an individual holding the same religious 
belief. 

'(16) Modification of Orders of Court. — Any order or judgment made by 
the Court in the case of any child shall be subject to such modification from time 
to time as the Court may consider to be for the welfare of such child, except that 
a child committed to an institution supported and controlled by the State may 
be released or discharged only by the governing board or officer of such institu- 
tion. Any parent or guardian, or if there be no parent or guardian the next 
friend of any child who has been or shall hereafter be committed by the Court 
to the custody of anj^ association, society or person, or that institution, associa- 
tion, society or person has failed to act upon such application within a reason- 
able time. A copy of such petition shall at once be served by the Court upon 
such institution, association, society, or person, whose duty it shall be to file a 
reply to the same within five days, if upon examination of the petition and reply 
the Court is of the opinion that an investigation should be had ; it may, upon 
due notice to all concerned, proceed to hear the facts and determine the question 
at issue, and may return such child to the custody of its parents or guardian or 
direct to such institution, association, society or person to make such other ar- 
rangements for the child 's care and welfare as the circumstances of the case may 
require. Any child, while under the jurisdiction of the Court, shall be subject 
to the visitation of the probation officer or other agent of the Court authorized 
to visit such child. 

(17) Appointment of Guardian — Custody of Child. — Whenever in the 
course of proceeding instituted under this Act it shall appear to the Court that 
the welfare of any child within the jurisdiction of the Court will be promoted 
by the appointment of an individual as general guardian of its person, when such 
child is not committed to an institution or to any incorporated society or associa- 
tion, or by the appointment of an individual or corporation as general guardian 
of its property, the Court shall have the jurisdiction to make such appointment, 
either upon the application of the child or of some relative or friend, or upon, 
the Court to be served upon the parent or parents of such child in such manner 
and for such time, prior to the hearing, as the Court may deem reasonable. In 
any case arising under this Section the Court may determine as between parents 



75 Code of Civil Procedure § 232 

or others whether the father or mother or what person shall have the custody and 
direction of said child, subject to the provisions of the preceding section. 

(18) Physical Examination of Child — Treatment of Defectives. — The 
Court, in its discretion, either before or after a hearing, may cause any child 
within its jurisdiction to be examined by one or more duly licensed phj^sicians, 
who shall submit a written report thereon to the Court. If it shall appear to 
the Court that any child within the jurisdiction of the Court is mentally de- 
fective, he may cause the child to be examined by two licensed physicians, and on 
the written statement of the two (2) examining physicians that it is their opinion 
that the child is mentally defective, feeble-minded, or epileptic, the Court may 
commit such child to an institution authorized by law to receive and care for 
mentally defective, feeble-minded, or epileptic children, as the case may be. 
No child shall be committed to such institution unless the parent or parents or 
the guardian or custodian of such child, if such there be, are given an oppor- 
tunity for a hearing. Whenever a child within the jurisdiction of the Court and 
under the provisions of this Section appears to the Court to be in need of medical 
or surgical care a suitable order may be made for the treatment of such child 
in a hospital or otherwise, and the expense thereof, when approved by the Court, 
shall be a charge upon the county or the appropriate subdivision thereof ; but 
the Court may adjudge that the person or persons having the duty under the 
law to support such child shall pay a part or all of the expenses of such treat- 
ment as provided in Subsection fourteen (14) of this Section. 

(19) Neglect of Child a Misdemeanor — Separation of Baby from Mother 
— Penalty for Violation of Act — Adoption of Children — Procedure in 
Bastardy — Abandonment — Orphanages — Abduction — Furnishing Tobacco — 
Furnishing Weapons — Leaving Child Confined Alone — Failure to Pay Min- 
or FOR Work. — A parent, guardian or other person having the custody of a 
child who omits to exercise reasonable diligence in the care, protection, or con- 
trol of such child, causing it to be adjudged delinquent, neglected or in need of 
the care, protection, or discipline of the State as provided in this Section, or 
who permits such child to associate with vicious, immoral, or criminal persons, or 
to beg or solicit alms, or to be an habitual truant from school, or to enter any 
house of prostitution or assignation, or any place where gambling is carried on 
or to enter any place which may be injurious to the morals, health or general 
welfare of such child, and any such person or any other person who knowingly 
or willfully is responsible for, encourages, aids, cause or connives at or who 
knowingly or wilfully does any act to produce, promote or contribute to the con- 
dition which caused such child to be adjudged delinquent, neglected or in need 
of the care, protection or discipline of the State, shall be guilty of a misdemeanor. 

That it shall be unlawful for any person to separate or aid in separating any 
child under six months of age from its mother for the purpose of placing said 
child in a foster home or institution, or removing it from the State for such pur- 
pose, unless the consent in writing for such separation shall have been obtained 
from the Judge of the Children's Court and County Health Officer of the county 
in which the mother resides, or of the county in which the child was born ; and it 
shall be unlawful for any mother to surrender her child for such purposes with- 
out first having obtained such consent. 

Any person violating this Section shall, upon conviction, be fined not exceed- 
ing five hundred ($500.00) dollars, or one year's imprisonment, or both, in 
the discretion of the Court. 

Persons desiring to adopt a minor may begin proceedings before the Judge 
of the Children 's Court, the parents or guardian or anyone having charge of 



§ 232 Code of Civil Procedure 76 

such child becomes party to the proceeding, and with consent of such, the Judge 
may sanction such adoption if the party seeking it seems suitable, after investi- 
gation by probation officer. Petitioner shall give bond for property, if any, in 
case child is orphan. Child inherits as natural children, and name of child may 
be changed to that of petitioner if allowed by Clerk. Order of adoption may be 
revoked at any time by Judge for cause. 

Warrants in bastardy shall be issued on voluntary complaint by mother or by 
County Commissioners that child is likely to become a county ward. When issue 
of paternity is tried and found against defendant he shall be fined not more than 
ten ($10.00) dollars, shall pay the woman two hundred ($200.00) dollars, and 
give bond that the child shall not become a public charge, and shall stand charged 
with the maintenance of the child as the Court may order. Action must be brought 
within three years after birth. If parents subsequently marry the child becomes 
legitimate as if born in lawful wedlock. The putative father of any illegitimate 
child may apply by petition in writing to the Children's Court of the county in 
which the father may reside, praying that such child may be declared legitimate. 
And if it shall appear that the petitioner is reputed the father of the child, the 
Court may thereupon declare and pronounce the child legitimate ; and the Clerk 
shall record the deed. If any person shall wilfully abandon his family without 
providing adequate support for his wife, and the children which he may have 
begotten upon her, he shall be guilty of a misdemeanor. 

If the fact of abandonment of any failure to provide adequate support for the 
wife and children shall be proved, or while living with such wife, neglect by the 
husband to provide for the adequate support of such wife or children shall 
be proved, then the fact that such husband neglects applying himself to some 
honest calling for the support of such wife or children and is found sauntering 
about endeavoring to maintain himself by gaming or other undue means or is a 
common frequenter of drinking houses, or is a known common drunkard, shall 
be presumptive evidence that such abandonment is wilful. 

Upon any conviction for abandonment, any Judge having jurisdiction there- 
of may, in his discretion, make such order as in his judgment shall best provide 
for the support as far as may be necessary, of the deserted wife or children, or 
both, from the property or labor of the defendant. 

If any husband while living with his wife shall wilfully neglect to provide ade- 
quate support for such wife or children which he has begotten upon her, he shall 
be guilty of a misdemeanor. 

That every indigent child which may be placed in any orphanage, children's 
home or child-placing institution in South Carolina, which shall be an institu- 
tion existing under and by virtue of the laws of this State, shall be under the 
control of the authorities of such institution so long as under the rules and regu- 
lations of such institution the child is entitled to remain in the same. The author- 
ity of the institution shall be the same as that of a parent or guardian before 
the child was placed in the institution : Provided, That such authority shall ex- 
tend only to the person of such child. 

That it shall be unlawful for any person to entice or attempt to entice, per- 
suade, harbor or conceal, or in any manner induce any indigent child to leave 
any of the institutions hereinbefore mentioned without the knowledge or con- 
sent of the authorities of such institution : Provided, This Section shall not inter- 
fere with the mother's right to her child in case she becomes able to sustain her 
child ; and the County Commissioners in the county in which she resides shall 
have authority to recommend to the institution concerning the child. 

That any person or persons violating any of the provisions of this Section 



77 Code of Civil Procedure § 232 

shall be guilty of a misdemeanor, and, upon conviction, shall be confined or im- 
prisoned, or both, in the discretion of the Court. 

Anyone who shall abduct or conspire to abduct, or induce any child under 
fourteen years of age to leave parents, uncle, aunt, either brother or sister, or 
a school at which it resides, or, if an orphan, to leave guardian, is guilty of a 
felony and may be imprisoned not more than fifteen years. 

If any person shall sell, give away or otherwise dispose of directly or indirectly 
cigarettes or tobacco in the form of cigarettes or cut tobacco in any form or 
shape which may be used or intended to be used as a substitute for cigarettes 
to any minor under the age of eighteen years ; or if any person shall aid, assist 
or abet any other person in selling such article to such minor, he shall be guilty 
of a misdemeanor, and, upon conviction, shall be punished by fine or imprison- 
ment in the discretion of the Court. 

If any person shall aid or assist any minor child under eighteen years old in 
obtaining the possession of cigarettes, or tobacco in any form used as cigarettes, 
by whatever name it may be called, he shall be guilty of a misdemeanor, and, 
upon conviction, shall be fined or imprisoned in the discretion of the Court. 

It shall be the duty of every police officer, upon knowledge or information 
that any minor under eighteen years is or has been smoking any cigarettes, to 
inquire of any such minor the name of the person who sold or gave him such 
cigarettes or the substitute from which it was made, or who aided and abetted 
in effecting such gift or sale. Upon receiving this information from any such 
minor the officer shall forthwith cause a warrant to be issued for the person giv- 
ing or selling or aiding and abetting in the giving and seHing of such cigarettes 
or the substance out of which they were made, and have such person dealt with 
as the law directs. Any such minor who shall fail or refuse to give to any officer 
upon inquiry the name of the person selling or giving him such cigarette or the 
substance out of which it was made, shall be guilty of a misdemeanor. 

If any person shall knowingly sell, offer for sale, give, or in any way dispose 
of to a minor any pistol or pistol cartridge, brass knucks, bowie knife, dirk, loaded 
cane or sling shot, he shall be guilty of a misdemeanor. Any person being the 
parent or guardian of, or attending in loco parentis to any child under the age 
of twelve years who shall knowingly permit such child to have the possession or 
custody of, or use in any manner whatever any gun, pistol, or other dangerous 
firearm, whether such firearm be loaded or unloaded, or any person who shall 
knowingly furnish such child any firearm, shall be guilty of a misdemeanor, and, 
upon conviction, shall be fined not exceeding fifty dollars or imprisoned not ex- 
ceeding thirty days. If any person shall leave any child of the age of seven years 
or less locked or otherwise confined in any dwelling, building or enclosure, and 
go away from such dwelling, building or enclosure, without lea^dng some person 
of the age of discretion in charge of the same, so as to expose the child to danger 
by fire, the person so offending shall be guilty of a misdemeanor, and shall be 
punished at the discretion of the Court. 

"Whenever any person, having a contract with any corporation, companj^, or 
person, for the manufacture or change of any raw material by the piece or 
pound, shall employ any minor to assist in the work upon the faith of and by 
color of such contract, with intent to cheat and defraud such minor, and, having 
secured the contract price, shall wilfully fail to pay the minor when he shall have 
performed his part of the contract work, whether done by the day or by the job, 
the person so offending shall be guilty of a misdemeanor, and, upon conviction, 
shall be fined not more than fifty dollars or imprisoned not more than thirty days. 
(20) Appeals. — An appeal may be taken from anj- judgment or order of the 



§ 232 Code of Civil Procedure 78 

Juvenile Court to the Superior Court having jurisdiction in the county by the 
parent or, in case there be no parent, by the guardian, custodian or next friend 
of any child, or by any adult described in the two preceding sections of this Sec- 
tion whose case has been heard by the Juvenile Court. Such appeal shall be taken 
in the manner provided for appeals to the Superior Court : Provided, That writ- 
ten notice of such appeal be filed with the Clerk of Court within five days after 
the issuance of the judgment or order of such Court. 

(21) Pay of Judge — of Probation Officers. — The Judge of the Juvenile 
Court shall be paid a reasonable compensation for his service, not less than 
$500.00 and not more than $1,000.00 per year, the amount to be determined by 
the County Delegation and the amount thus determined by the County Delega- 
tion shall be charged against the public funds of the county and such compensa- 
tion shall be independent of, and in addition to, any compensation which may 
come to him as Judge of the Probate Court. The County Delegation shall also 
make such provision as is necessary for the salary of the Chief Probation Officer 
and for the equipment and maintenance of the Probation Office together with 
due provision for transportation of the Chief Probation Officer over the county 
in the proper discharge of his or her duties. 

(22) Officials to Co-operate — Reports from Institutions. — It is hereby 
made the duty of every State, county or municipal official or department to ren- 
der such assistance and co-operation within his or its jurisdiction or power as 
shall further the objects of this Section. All institutions or other agencies to 
which any person coming within the provisions of this Section may be sent are 
hereby required to give such information concerning such child to the Court 
or to any other officer appointed by it as authorized to seek the co-operation of 
all societies, organizations or individuals to the end that the Court may be as- 
sisted in every way in the discharge of its duties. 

(23) Procedure — Forms. — The Court shall have power to devise and publish 
rules to regulate the procedure in cases coming within the provisions of this 
Section and for the conduct of all probation and other officers of the Court in 
such cases. The Court shall devise and cause to be printed for public use such 
forms for records and for various petitions, orders, processes, and other papers 
in the cases coming within this Section as shall meet the requirements thereof, 
and all expenses incurred in complying with the provisions of this Section shall 
be a public charge. 

(24) Advisory Board. — The Judge of the Juvenile Court shall appoint no less 
than six and no more than twelve efficient, reputable citizens of both sexes to act 
upon what shall be known as the Advisory Board of the Children's Court. The 
members of this Board shall serve for an indefinite period of time and without 
financial compensation. The duties of this Board shall be : To advise and to co- 
operate with the Court and Probation Officer in all matters appertaining to the 
moral, legal, physical, and spiritual welfare of all children within the county 
and the cities thereof ; to visit all private and public institutions wherein chil- 
dren are placed or committed; and to report to the Judge upon the same and to 
make such recommendations as they deem necessary. These reports to be made 
in writing and a copy of the same to be sent to the County Delegation and to 
the State Board of Public Welfare. This Advisory Board shall have the control 
and management of the Detention Home. This Advisory Board shall meet at 
least once a month with the Judge of the Juvenile Court. There shall be a Chair- 
man, Secretary and Treasurer. The Judge of the Juvenile Court shall act as 
Honorary Chairman. All proceedings of the Advisory Board shall be kept in 
writing. 

1923, XXXIII, 207 ; 1925, XXXIV, 231 ; 1927, XXXV, 227. 



79 Code of Civil Peoceduee § 233 

§ 233. Children's Court for Greenville County — Jurisdiction — Judge. — 

There is hereby established a Chiklren's Court in Greenville County, South 
Carolina, which shall have jurisdiction concurrent with the Greenville County 
Court and the Circuit Courts of any case of a child less than sixteen years of age, 
and of all other persons involved with or contributing to the dependency or de- 
linquency of any child, residing in or being at the time within the said county, 
or any city therein. 

(a) Who is delinquent, or who violates any municipal or State law or ordi- 
nance, or who is truant, unruly, wayward or misdirected, or who is disobedient 
to parents or beyond their control, or who is in danger of becoming so : or, 

(b) Who is neglected or who engages in any occupation, calling or exhibition, 
or is found in any place where a child is forbidden by law to be, and for per- 
mitting which an adult may be punished by law, or who is in such condition or 
surroundings, or under such improper or insufficient guardianship or control as 
to endanger the morals, health or general welfare of such child: or, 

(c) Who is dependent upon public support, or who is destitute, homeless or 
abandoned, or whose custody is subject to controversy, or who is insane or feeble 
minded or idiotic or epileptic or so far mentally deficient as to be unable to ex- 
ercise proper control over his own affairs, or whose mind is so deranged or im- 
paired as to endanger the health, person or property of himself or others. 

When jurisdiction has been obtained in the case of any child, unless a Court 
order shall be issued to the contrary, or unless the child be committed to an 
institution supported and controlled by the State, it shall continue for the pur- 
pose of this Act during the minority of the child. The duty shall be constant 
upon the Court to give each subject in its jurisdiction such oversight and control 
in the premises as will conduce to the welfare of such child and to the best 
interest of the State. 

The Children's Court hereby established shall be held by a Judge, who shall 
be appointed by the Governor, upon the recommendation of a majority of the 
Legislative Delegation of Greenville County, and the Judge shall hold his ofSce 
for a term of two years and until his successor is duly appointed and qualified, 
and whose compensation shall be such as is provided by the Greenville County 
Delegation. 

All provisions of the preceding Section, 232, shall obtain and be applicable 
in the said Children's Court. 
1927, XXXV, 281. 



CHAPTER 5 

Courts of Magistrates 

234. Civil Jurisdiction. 243-5. Undertaking bv Defendant. 

235-7. Bail. 246, 249. Issue of Title to Realty. 

238. Concealed Property. 247. New Action. 

239. Custody of Property. 248. Costs. 

240. Claim of Property by Third Person. 250. Judgment and New Trial. 

241. No Jurisdiction in Certain Cases. 251. Rules. 

242. Answer of Title. 252. Waiver of Jurisdiction. 

§ 234. Civil Jurisdiction. — Magistrates shall have civil jurisdiction in the 
following actions : 

1870, XIV, § 74; Con., Art. V, §§ 20 and 21. 

(1) In actions arising on contracts for the recovery of money only, if the sum 
claimed does not exceed one hundred dollars. 

(2) An action for damages for injury to rights pertaining to the person, or 



j§ 234 Code of Civil Procedure 80 

personal or real property, if the damages claimed do not exceed one hundred dol- 
lars, and in cases of bastardy. 

(3) An action for a penalty, fine, or forfeiture, where the amount claimed or 
forfeited does not exceed one hundred dollars. 

(4) An action commenced by attachment of property, as now provided by 
Statute, if the debt or damages claimed do not exceed one hundred dollars. 

(5) An action upon bond conditioned for the payment of money, not exceed- 
ing one hundred dollars, though the penalty exceed that sum, the judgment to 
be given for the sum actually due. Where the payments are to be made by in- 
stallments, an action may be brought for each installment as it becomes due. 

(6) An action upon a surety bond taken by them, where the penalty or amount 
claimed does not exceed one hundred dollars. 

(7) An action upon a judgment rendered in a Court of a Magistrate or an 
inferior Court, where such action is not prohibited by Section 310. 

(8) To take and enter judgment on the confession of a defendant, where the 
amount confessed shall not exceed one hundred dollars, in the manner prescribed 
by law. 

(9) An action for damages, fraud in the sale, purchase, or exchange of per- 
sonal property, if the damages claimed do not exceed one hundred dollars. 

(10) In all matters between landlord and tenant, and the possession of land 
as provided in Article 2 of Chapter 77 of the Civil Code. 

(11) An action to recover the possession of personal property claimed, the 
value of which, as stated in the affidavit of the plaintiff, his agent, or attorney, 
shall not exceed the sum of one hundred dollars. 

The plaintiff in such action, at the time of issuing the summons, but not after- 
wards, may claim the immediate delivery of such property as hereinafter pro- 
vided. 

Before any process shall be issued in an action to recover the possession of 
personal property, the plaintiff, his agent, or attorney, shall make proof by 
affidavit, showing : 

(a) That the plaintiff is the owner, or entitled to immediate possession, of the 
property claimed, particularly describing the same. 

(b) That such property is wrongfully withheld or detained by the defendant. 

(c) The cause of such detention or withholding thereof, according to the 
best knowledge, information, and belief of the person making the affidavit. 

(d) That said personal property has not been taken for any tax, fine, or as- 
sessment, pursuant to Statute, or seized by virtue of an execution or attachment 
against the property of said plaintiff; or, if so seized, that it is exempt from 
such seizure by Statute. 

(e) The actual value of said personal property. 

' (12) On receipt of such affidavit, and an undertaking, in writing, executed 
by one or more sufficient sureties, to be approved by the Magistrate before 
whom such action is commenced, to the effect that they are bound in double the 
value of such property as stated in said affidavit, for the prosecution of the 
said action, and for the return of said property to the defendant, if return there- 
of be adjudged, and for the payment to him of such sum as may, for any cause, 
be recovered against said plaintiff, the Magistrate shall endorse upon said af- 
fidavit a direction to any Constable of the county in which said Magistrate shall 
reside, requiring said Constable to take the property described therein from the 
defendant, and keep the same, to be disposed of according to law ; and the said 
Magistrate shall at the same time issue a summons, with a copy of the undertak- 
ing, directed to the defendant, and requiring him to appear before said Magis- 



81 Code of Civil Procedure § 235 

trate at a time and place to be therein specified, and not more than twenty days 
from the date thereof, to answer the complaint of said plaintiff; and the said 
summons shall contain a notice to the defendant that, in case he shall fail to 
appear at the time and place therein mentioned, the plaintiff will have judg- 
ment for the possession of the property described in said affidavit, with the costs 
and disbursements of said action. 
1879, XVII, 28. 

(13) The Constable to whom said affidavit, endorsement and summons shall 
be delivered, shall forthwith take the property described in said affidavit, if he 
can find the same, and shall keep the same in his custody. He shall, thereupon, 
without delay, serve upon said defendant a copy of such affidavit, notice and 
summons, by delivering the same to him personally, if he can be found in said 
county; if not found, to the agent of the defendant in whose possession said 
property shall be found; if neither can be found, by leaving such copies at the 
last or usual place of abode of the defendant, with some person of suitable age 
and discretion. And he shall forthwith make a return of his proceedings thereon, 
and the manner of serving the same, to the Magistrate who issued the said sum- 
mons. 

(14) The defendant may at any time after such service, and at least two 
days before the return day of said summons, serve upon plaintiff, or upon the 
Constable who made such service, a notice in writing that he excepts to the 
sui'eties in said bond or undertaking ; and if he fail to do so, all objection thereto 
shall be waived. If such notice be served, the sureties shall justify, or the plain- 
tiff give new sureties, on the return day of said summons, who shall then appear 
and justify, or said Magistrate shall order said property delivered to defendant, 
and shall also render judgment for defendant's cost and disbursements. 

(15) At any time before the return day of said summons, the s^aid defendant 
may, if he has not excepted to plaintiff's sureties, require the return of. said 
property to him upon giving to the plaintiff, and filing same with the Magistrate, 
a written undertaking, with one or more sureties, who shall justify before said 
Magistrate on the return day of said summons, to the effect that they are bound 
in double the value of said property, as stated in plaintiff's affidavit, for the 
delivery thereof to said plaintiff, if such delivery be adjudged, and for the pay- 
ment to him of such sum as may be required before the return day of said 
summons, the property shall be delivered to said plaintiff. 

Civ. P. '22, § 213; Civ. P. '12, § 80; Civ. P. '02, § 71. 

§ 235. Qualification of Bail. — The qualification of bail must be as follows : 

(1) Each of them must be a resident, and householder or freeholder within 
the State. 

(2) They must each be worth the amount specified in the order of arrest, ex- 
clusive of property exempt from execution; but the Judge or a Magistrate, on 
justification, may allow more than two bail to justify severally in amounts less 
than that expressed in the order, if the whole justification be equivalent to that of 
two sufficient bail. 

Civ. P. '22, § 214; Civ. P. '12, § 81; Civ. P. '02, § 72; 1870, XIV, § 75. 

§ 236. Justification of Bail. — For the purpose of justification, each of the 
bail shall attend before the Judge or a Magistrate at the time and place men- 
tioned in the notice, and may be examined on oath, on the part of the plaintiff, 
touching his sufficiency, in such manner as the Judge or Magistrate, in his dis- 
cretion, may think proper. The examination shall be reduced to writing, and 
subscribed by the bail, if required by the plaintiff. 

Civ. P. '22, § 215 ; Civ. P. '12, § 82 ; Civ. P. '02, § 73 ; 1870, XIV, § 76. 



§ 237 Code of Civil Peoceduee S.2 

§ 237. Allowance of Bail. — If the Judge or Magistrate find the bail suf- 
ficient he shall annex the examination to the undertaking, endorse his allowance 
thereon, and cause them to be filed with the Clerk ; and the Sheriff shall, there- 
upon, be exonerated from liability. 

Civ. P. '22, § 216 ; Civ. P. '12, § 83 ; Civ. P. '02, § 74 ; 1870, XIV, § 77. 

§ 238. Property — How Taken When Concealed in Building or Enclosure. — 

If the property, or any part thereof, be concealed in a building or enclosure, the 
Constable shall publicly demand its delivery. If it be not delivered, he shall 
cause the building or enclosure to be broken upon, and take the property into 
his possession ; and, if necessary, he may call to his aid the power of his county. 
Civ. P. '22, § 217; Civ. P. '12, § 84; Civ. P. '02, § 75; 1870, XIV, 78. 

§ 239. Property — How Kept. — When a Constable shall have taken prop- 
erty, as in this Chapter provided, he shall keep it in a secure place, and deliver 
it to the party entitled thereto, upon receiving his lawful fee for taking, and 
his necessary expenses for keeping the same. 

Civ. P. '22, § 218 ; Civ. P. '12, § 85 ; Civ. P. '02, § 76 ; 1870, XIV, 79. 

§ 240. Claim of Property by Third Person. — If the property taken be 
claimed by any other person than the defendant or his agent, and such person 
shall make affidavit to his title thereto, and right to the possession thereof, stat- 
ing the grounds of such right and title, and serve the same upon the Constable, 
the Constable shall not be bound to keep the property or deliver it to the plaintiff, 
unless the plaintiff on demand of him or his agent, shall indemnify the Constable 
against such claim, by an undertaking, executed by two sufficient sureties, ac- 
companied by their affidavits, that they are each worth double the value of the 
property as specified in the affidavit of the plaintiff, and are freeholders and 
householders of the county. And no claim to such property, by any other person 
than the defendant or his agent, shall be valid against the Constable, unless made 
as aforesaid; and notwithstanding such claim, when so made, he may retain the 
property a reasonable time to demand such indemnity. 

The actions so commenced shall be tried in all respects as other actions are 
tried in the Magistrates' Courts. 

The judgment for the plaintiff may be for the possession, or for the recovery 
of the possession, or the value thereof, in case a delivery cannot be had, and of 
damages for the detention. If the property have been delivered to the plaintiff, 
and the defendant claim a return thereof judgment for the defendant may be 
for a return of the property, or the value thereof, in case a return cannot be had, 
and damages for taking and withholding the same. An execution shall be issued 
thereon and if the judgment be for the delivery of the possession of personal 
property, it shall require the officer to deliver the possession of the same, partic- 
ularly describing it, to the party entitled thereto, and may, at the same time, 
require the officer to satisfy any costs or damages recovered by the same judg- 
ment out of the personal property of the party against whom it was rendered, to 
be specified therein, if a delivery thereof cannot be had. The execution shall be 
returnable within sixty days after its receipt by the officer to the Magistrate 
who issued the same. 

In all actions for the recovery of the possession of personal property, as herein 
provided, if the property shall not have been delivered to plaintiff, or the de- 
fendant by answer shall claim a return thereof, the Magistrate or jury shall 
assess the value thereof, and the injury sustained by the prevailing party by 
reason of the taking or detention thereof, and the Magistrate shall render judg- 
ment accordingly, with costs and disbursements. 

If it shall appear by the return of a Constable that he has taken the property 



83 Code of Civil Procedure § 241 

described in the plaintiff's affidavit, and that defendant cannot be found, and 
has no last place of abode in said county, or that no agent of defendant could 
be found, on whom service could be made, the Magistrate may proceed with the 
cause in the same manner as though there had been a personal service. 

For the endorsement on said affidavit the Magistrate shall receive an additional 
fee of twentj'-five cents, which shall be included in the costs of the suit. 

Civ. P. '22, § 219; Civ. P. '12, § 86; Civ. P. '02, § 77; 1870, XIV, § 80. 

§ 241. No Jurisdiction in Certain Cases. — But no Magistrate shall have 
cognizance of a civil action : 

(1) In which the State is a party, excepting for penalties not exceeding one 
hundred dollars. 

(2) Nor where the title to real property shall come in question. 

(3) Nor of a civil action for an assault, battery, false imprisonment, libel, slan- 
der, malicious prosecution, criminal conversation, or seduction, where the dam- 
ages claimed exceed one hundred dollars. 

Civ. P. '22. § 220 ; Civ. P. '12, § 87 ; Civ. P. '02, § 78 ; 1870, XIV, § 81 ; 1873, XV, 496. 

§ 242. Answer of Title. — In every action brought in a Court of Magistrate 
where the title to real property shall come in question, the defendant may, either 
with or without other matter of defense, set forth in his answer any matter show- 
ing that such title will come in question. Such answer shall be in writing, signed 
by the defendant or his attorney, and delivered to the Magistrate. The Magis- 
trate shall thereupon countersign the same and deliver it to the plaintiff. 

Civ. P. '22, § 221 ; Civ. P. '12, § 88 ; Civ. P. '02, § 79 ; 1870, XIV, § 82. 

§ 243. Written Undertaking by Defendant. — ^At the time of answering the 
defendant shall deliver to the Magistrate a written undertaking, executed by at 
least one sufficient surety, and approved by the Magistrate, to the effect that if 
the plaintiff shall, within twenty days thereafter, deposit with the Magistrate 
a summons and complaint in an action in the Circuit Court for the same cause, 
the defendant will, within twenty days after such deposit, give an admission in 
writing to the service thereof. 

Where the defendant was arrested in the action before the Magistrate the 
undertaking shall further provide that he will, at all times, render himself amen- 
able to the process of the Court during the pending of the action, and to such 
as may be issued to enforce the judgment therein. In case of failure to comply 
with the undertaking, the surety shall be liable not exceeding one hundred dollars. 

Civ. P. '22, § 222 ; Civ. P. '12, § 89 ; Civ. P. '02, § 80 ; 1870, XIV, § 83. 

§ 244. Suit Discontinued on Undertaking of Defendant. — Upon the de- 
livery of the undertaking to the Magistrate the action before him shall be dis- 
continued, and each party shall pay his own costs. The costs so paid by either 
party shall be allowed to him if he recover costs in the action, to be brought 
for the same cause in the Circuit Court. If no such action be brought within 
thirty days after the delivery of the undertaking, the defendant's costs before 
the Magistrate may be recovered of the plaintiff. 

Civ. P. '22, § 223; Civ. P. '12, § 90; Civ. P. '02, § 81; 1870, XIV, § 84. 

§ 245. If Undertaking not Given. — If the undertaking be not delivered to 
the Magistrate he shall have jurisdiction of the cause, and shall proceed therein ; 
and the defendant shall be precluded, in his defense, from drawing the title in 
question. 

Civ. P. '22, § 224 ; Civ. P. '12, § 91 ; Civ. P. '02, § 82 ; 1870, XIV, § 8.5. 

§ 246. If Plaintiff's Showing Develop Issue of Title to Eeal Property. — 

If, however, it appear on the trial, from the plaintiff's own showing, that the title 



§ 247 Code of Civil Procedure 84 

to real property is in question, and such title shall be disputed by the defendant, 
the Magistrate shall dismiss the action and render judgment against the plaintiff 
for the costs. 

Civ. P. '22, § 225 ; Civ. P. '12, § 92 ; Civ. P. '02, § 83 ; 1870, XIV, 86. 

§ 247. New Action. — When a suit before a Magistrate shall be discon- 
tinued by the delivery of an answer and undertaking, as provided in Sections 
242, 243 and 244, the plaintiff may prosecute an action for the same cause in the 
Circuit Court, and shall complain for the same cause of action only on which 
he relied before the Magistrate, and the answer of the defendant shall set up 
the same defense only which he made before the Magistrate. 

Civ. P. '22, § 226 ; Civ. P. '12, § 93 ; Civ. P. '02, § 84 ; 1870, XIV, § 87. 

§ 248. Costs. — If the judgment in the Circuit Court be for the plaintiff, he 
shall recover costs ; if it be for the defendant, he shall recover costs, except that 
upon a verdict he shall pay costs to the plaintiff, unless the Judge certify that 
the title to real property came in question on the trial. 

Civ. P. '22, § 227 ; Civ. P. '12, § 94 ; Civ. P. '02, § 85 ; 1870, XIV, § 88. 

§ 249. Answer of Title as to One Cause of Action. — If, in an action before 
a Magistrate, the plaintiff have several causes of action, to one of which the de- 
fense, of title to real property shall be interposed, and, as to such cause, the de- 
fendant shall deliver an answer and undertaking, as provided in Sections 242 
and 243, the Magistrate shall discontinue the proceedings as to that cause, and 
the plaintiff may commence another action therefor in the Circuit Court. As to 
the other causes of action, the Magistrate may continue his proceedings. 

Civ. P. '22, § 228 ; Civ. P. '12, § 95 ; Civ. P. '02, § 86 ; 1870, XIV, § 89. 

§ 250. Docketing- J'uidgments; — Transcript — Operation — Sale — Setting 
Aside Judgment. — ^New Trial. — ^A Magistrate, on the demand of a party in 
whose favor he shall have rendered a judgment, shall give a transcript thereof, 
which may be filed and docketed in the office of the Circuit Court of the county 
where the judgment was rendered. The time of the receipt of the transcript by 
the Clerk shall be noted thereon and entered in the Abstract of Judgments, and 
from that time the judgment shall be a judgment of the Circuit Court, but no 
sale shall be made under any execution issued upon such judgment in the Cir- 
cuit Court until the time for appealing from the judgment in the Magistrate's 
Court has expired, nor pending such appeal. If the judgment is set aside in the 
Magistrate's Court, it shall have the effect of setting aside the judgment filed 
and docketed in the Circuit Court. The filing and docketing such transcript 
in the Circuit Court shall not affect the right of the Magistrate to grant a new 
trial. A certified transcript of such judgment may be filed and docketed in the 
Clerk's office of any other county, and with like effect, in every respect, as in the 
county where the judgment was rendered. 

Civ. P. '22, § 229 ; Civ. P. '12, § 96 ; Civ. P. '02, § 87 ; 1870, XIV, § 90 ; 1887, XIX, 831. 

§ 251. Rules. — The following rules shall be observed in the Courts of 
Magistrates : 

(1) The pleadings in the Courts are : 1. The complaint by the plaintiff. 2. The 
answer by the defendant. 

(2) The pleadings may be oral or in writing; if oral, the substance of them 
shall be entered by the Magistrate in his docket ; if in writing, they shall be filed 
by him, and a reference to them shall be made in the docket. 

(3) The complaint shall state, in a plain and direct manner, the facts consti- 
tuting, the cause of action. 



85 Code of Civil Peoceduee § 251 

(4) The answer may contain a denial of the complaint, or any part thereof, 
and also a notice, in a plain and direct manner, of any facts constituting a de- 
fense or counterclaim. 

(5) Pleadings are not required to be in any particular form, but must be such 
as to enable a person of common understanding to know what is intended. 

(6) Either party may demur to a pleading of his adversary, or to any part 
thereof, when it is not sufficiently explicit to enable him to understand it, or it 
contains no cause of action or defense, although it be taken as true. 

(7) If the Court deem the objection well founded, it shall order the pleadings 
to be amended ; and, if the party refuse to amend, the defective pleading shall be 
disregarded. 

(8) Peoof of Seevice and No Answee — Liquidated and Unlimited Demand 
— Peoof of Claim. — In any action on contract where a defendant does not ap- 
pear and answer, the plaintiff may file proof of the service of the summons and 
complaint, or of the summons, on one or more of the defendants, and that no 
answer or demurrer has been served upon him. When the action is for the re- 
covery of money only, judgment may be given for the plaintiff by default, if the 
demand be liquidated, and if unliquidated, and the plaintiff itemize his account 
and append thereto an affidavit that it is true and correct and no part of the 
sum sued for has been paid by discount or otherwise, and a copy be served with 
the summons on the defendant, and the defendant shall neither answer or demur, 
the plaintiff shall have judgment for the sum sued for, as in the case of liquidated 
demands. In all other cases where the defendant fails to appear and answer, the 
plaintiff cannot recover without proving his case. 

1887, XIX, 833. 

(9) Action oe Defense Founded Upon an Account. — In an action or de- 
fense founded upon an account, or an instrument for the payment of money only, 
it shall be sufficient for a party to deliver the account or instrument to the Court, 
and to state that there is due to him thereon, from the adverse party, a specified 
sum, which he claims to recover or set off. 

1870, XIV, 423, § 91. 

(10) Vaeiance. — A variance between the proof on the trial and the allegations 
in a pleading shall be disregarded, as immaterial, unless the Court shall be satis- 
fied that the adverse party has been misled to his prejudice thereby. 

(11) Amendment of Pleadings. — The pleadings may be amended at any 
time before the trial, or during the trial, or upon appeal, when, by such amend- 
ment, substantial justice will be promoted. If the amendment be made after the 
joining of the issue, and it be made to appear to the satisfaction of the Court, 
by oath, that an adjournment is necessary to the adverse party, in consequence 
of such amendment, an adjournment shall be granted. The Court may also in 
its discretion, require as a condition of an amendment, the payment of costs to 
the adverse party. 

(12) Issuance of Magisteates' Executions — Sales Theeeundee. — Execu- 
tion may be issued on a judgment heretofore or hereafter rendered in Magis- 
trates ' Courts at any time after the rendering of such judgment, and within three 
years after the rendition thereof, and shall be returnable sixty days from date 
of the same, but no sale thereunder shall be made until after the time for ap- 
pealing has expired, nor pending such appeal : Provided, That in cases for the 
claim and delivery of personal property where bond for the property claimed 
has been properly given by either party, the status of such property shall not 
be changed until after the expiration of the time for appealing has expired, or 
until such appeal has terminated. 

1887, XIX, 832. 



§ 251 Code of Civil Proceduee 86 

(13) Issuance of Execution to Sheriff. — If the judgment be docketed with 
the Clerk of the Circuit Court, the execution shall be issued by him to the Sheriff 
of the county, and have the same effect, and be executed in the same manner, 
as other executions and judgments of the Circuit Court. 

(14) Refusing Exhibit of Account or Statement of Nature. — The Court 
may, at the joining of the issue, require either party, at the request of the other, 
at that or some other specified time, to exhibit his account, or state the nature 
thereof as far as may be in his power, and, in ease of his default, preclude him 
from giving evidence of such parts thereof as shall not have been so exhibited 
or stated. 

(15) Forms of Action, Parties, Evidence, Commencement of Action and 
Service on Corporations. — The provisions of this Code of Procedure, respect- 
ing I'orms of actions, parties to actions, the rules of evidence, the times of com- 
mencing actions, and the service of process upon corporations, shall apply to 
these courts. 

The defendant may, on the return of process, and before answering, make an 
offer in writing to allow judgment to be taken against him for an amount, to 
be stated in such offer, with costs. The plaintiff shall thereupon, and before any 
other proceeding shall be had in the action, determine whether he will accept 
or reject such offer. If he accept the offer, and give notice thereof in writing, the 
Magistrate shall file the offer and the acceptance thereof, and render judgment 
accordingly. If notice of acceptance be not given, and if the plaintiff fail to obtain 
judgment for a greater amount, exclusive of costs, than has been specified in 
the offer, he shall not recover costs, but shall pay to the defendant his costs 
accruing subsequent to the offer. 

(16) Time for Serving Compla.int — When and How Shortened. — When 
twenty-five or more dollars is demanded, the complaint shall be served on the 
defendant not less than twenty days ; and where less than that sum is demanded, 
not less than five days before the day therein fixed for trial: Provided, That if 
the plaintiff shall make out that he is apprehensive of losing his debt by such 
delay, and the Magistrate considers that there is good reason therefor (the 
grounds of such apprehension being set out in an affidavit and served with a copy 
of the complaint), he may make such process returnable in such time as the 
justice of the case may require. 

1891, XX, 1113. 

(17) New Trials. — Any Magistrate Court of this State shall have power to 
grant a new trial in any case tried in the said courts for reasons for which 
new trials have usually been granted in the courts of law of this State. The 
granting of a new trial shall in no wise affect the right and duty of such Magis- 
trate to change the venue of said case, as provided in Subdivision 19 of this 
Section. 

1876, XVI, 60; 1908, XXV, 1032. 

(18) Time for Motion for New Trial. — No motion for a new trial shall be 
heard unless made within five days from the rendering of the judgment : Pro- 
vided, That the right of appeal from the judgment shall exist for five days after 
the refusal of a motion for a new trial. 

(19) Change of Venue. — Magistrates shall have the power to change the 
venue in all cases, civil and criminal, pending before them : Provided, That in 
counties where they have separate and exclusive territorial jurisdiction the 
change of venue shall be to another Magistrate's district in the same county. 
Whenever either party in a civil case, or the prosecutor or accused in a criminal 
case, which is to be tried before a Magistrate, shall file with the Magistrate issu- 



87 



Code of Civil Procedure 



§ 252 



ing the paper an affidavit to the effect that he does not believe he can obtain 
a fair trial before the Magistrate, the papers shall be turned over to the nearest 
Magistrate not disqualified from hearing said cause in the county, who shall pro- 
ceed to try the case as if he had issued the papers : Provided, Such affidavit shall 
set forth the grounds of such belief, and in civil cases two days ' notice of the ap- 
plication for change of venue shall be given to the adverse party. One such 
transfer only shall be allowed each party in any case. 

Civ. P. '22, § 230 ; Civ. P. '12, § 97 ; Civ. P. '02, § 88 ; 1887, XIX, 787 ; 1896, XXII, 13. 

§ 252. "Waiver of Jurisdiction in Actions in Magistrates' Courts, Brought 
in Wrong County. — When any civil action cognizable by Magistrates shall be 
brought in the wrong county, the mere failure of the defendant to appear shall 
not be deemed a waiver of any objection such defendant may have to the juris- 
diction of the Magistrate : Provided, That nothing herein contained shall be 
construed to prevent any positive action of such defendant from which an in- 
tention to waive the jurisdictional objection might be inferred from operating 
as such waiver. 

Civ. P. '22, § 231; 1919, XXXI, 51. 



CHAPTER 6 

Civil and Criminal Court of Sumter 



253. Establishment. 

254. Jurisdiction. 
255-6-263. Jurors. 

257. Judges. 

258. Judge Pro-tem. 

259. Judge's Power. 

260. Clerk and Stenographer. 



261. Sheriff. 

262. Bailiffs. 

263. Witnesses. 

264. Procedure. 

265. Terms. 

266. Transfer of Cases. 

267. Appeals. 



§ 253. Civil and Criminal Court of Sumter Established — ^Jurisdiction. — 

A Court inferior to the Circuit and to be known as the Civil and Criminal Court 
of Sumter is hereby established for the City of Sumter and the adjacent terri- 
tory in the County of Sumter, to wit: The townships of Rafting Creek, States- 
burg, Middleton, Manchester, Fulton, Providence, Privateer, Concord, Mayes- 
villCj and Sumter. 
1930, XXXVI, 1131. 

§ 254. Jurisdiction — Civil — Criminal. — The said Civil and Criminal Court 
shall be a Court of record and shall have jurisdiction to try and determine and 
civil cases and special proceedings, both at law and in equity, where the value 
of the property in controversy, or the amount claimed does not exceed the sum 
of two thousand five hundred ($2,500.00) dollars, but such jurisdiction shall 
not extend to cases where the title to real estate is in question. The jurisdiction 
of said Court within the limits above defined shall extend to all cases which may 
be brought by or against any residents or citizens who may reside within the 
County of Sumter and within said townships, and likewise by or against any 
corporation doing business and/or having agents within the territorial limits 
of said Court, and likewise such as reside without the territorial limits of the 
jurisdiction of said Court, as above defined, provided such person or persons 
against whom action may be brought shall consent thereto : Criminal jurisdiction 
of said Court shall not extend to cases where the punishment exceeds a fine of 
one hundred ($100.00) dollars or imprisonment for thirty (30) days, and the 
Judge thereof shall have all powers, duties and prerogatives of a Magistrate in 
all criminal matters, 

1930, XXXVI, 1131. 



§ 255 Code of Civil Procedure 87A 

§ 255. Board of Jury Commissioners — Jurors. — The Board of Jury Com- 
missioners as constituted by the law in the County of Sumter for the drawing 
of jurors for the Circuit Courts shall constitute the Board of Jury Commissioners 
for the drawing of jurors for the said Civil and Criminal Court and the law re- 
lating to the qualifications, drawing and summoning of jurors for attendance 
upon the Circuit Courts shall apply to the qualifications, drawing and summon- 
ing of jurors for the said Civil and Criminal Court, provided that no more than 
eighteen persons shall be drawn and summoned to appear at the same time at 
any session of the Civil and Criminal Court unless the Court shall otherwise 
order: Provided, further, That no juror from without the territorial limits of 
said Court shall be required to serve without such jurors' consent. The jurors 
drawn and summoned shall appear and attend the session of the said Court until 
excused or discharged by the Judge : Provided, That no juror shall be required 
to serve in said Court more than once in any one calendar year. 

1930, XXXVI, 1131. 

§ 256. Juries. — Juries in the said Civil and Criminal Court shall consist 
of six persons. 

1930, XXXVI, 1131. 

§ 257. The Judge — Election — Oath — Commission — Salary — Practice. — 

—There shall be a Judge of said Civil and Criminal Court who shall be an at- 
torney, resident within the jurisdictional limits thereof, with at least five years' 
actual experience in the practice of law, and who shall be commissioned by the 
Governor upon the recommendation of the majority of the members of the Bar 
residing within said jurisdictional limits. He shall hold office for four years, and 
until his successor has been appointed, and has qualified : Provided, That William 
M. Reynolds is hereby designated as Judge of said Court, to be commissioned 
by the Governor, and to serve for a period of two (2) years and until his suc- 
cessor is appointed. Said Judge before entering upon the duties of his office shall 
take the same oath of office as required by law of Circuit Judges and shall be 
commissioned in the same manner as Circuit Judges. He shall receive as com- 
pensation the sum of two thousand ($2,000.00) dollars per annum to be paid in 
monthly installments b}^ the County Treasurer upon the warrant of the Board 
of County Commissioners. The said Judge shall be debarred from practice of 
law in all matters within the jurisdiction of said Court and Criminal Courts. 
1930, XXXVI, 1131. 

§ 258. Recorder of the City of Sumter Judge Pro-Tern. — If the duly com- 
missioned Judge of said Court shall be disqualified for any reason, or be absent, 
or unable to act, or if he resign, or any vacancy in the office of Judge of said 
Court occur, the Recorder of the City of Sumter shall temporarily fill the place 
of Judge of said Court with all the powers of Judge thereof until the Judge of 
said Court shall return to his duties, or until the Governor shall fill such vacancy 
for the unexpired term of such Judge as herein provided for the appointment of 
such Judge. 

1930, XXXVI, 1131. 

§ 259. Powers of Judge. — As to all cases and special proceedings within 
the jurisdiction of the said Civil and Criminal Court and pending therein, the 
said Judge shall have the same jurisdiction with reference thereto both in open 
Court and at Chambers, as is possessed by Circuit Judges over cases pending in 
the Circuit Courts, over which they are presiding, or in the Circuit in which 
they are resident, and said Judge shall have the power to grant writs of injunc- 



87B Code of Civil Procedure § 260 

tion and habeas corpus, and shall also have the power to punish any person or 
persons guilty of any act in contempt of Court. 
1930, XXXVI, 1131. 

§ 260. Clerk of Court — Duties — Judgments — Compensation — Stenographer 
— How Appointed — Salary — Stenographer to be Deputy Clerk.— The Clerk of 
the Circuit Court shall be ex officio Clerk of the said Civil and Criminal Court 
and shall keep such calendars, minutes and records of the said Civil and Crim- 
inal Court and the causes pending therein, and attend and perform such duties 
as Clerk thereof, as is required of him by law as Clerk of the Circuit Court. 
Judgments recovered in the Civil and Criminal Court shall be entered of record 
and recorded in the same books as judgments of the Circuit Court. The Clerk 
shall make up, before each term of Court, a jury issue docket, on which shall be 
placed all matters to be tried before a jury, that are at issue, under the plead- 
ings, at least seven days before the commencement of the term. .A.11 cases shall 
be tried in their order on the docket unless changed or varied by the Court for 
its convenience, and in the furtherance of justice. For services performed as 
Clerk of said Civil and Criminal Court the Clerk shall receive such fees in the 
civil matters as are now allowed by law : Provided, That the Judge of said 
Court shall have the power to appoint (and, at his pleasure, remove), a suit- 
able stenographer for said Court whose salary shall not exceed the sum of Seven 
Hundred ($700.00) Dollars per annum, to be paid in monthly installments on 
warrant of County Board of Commissioners ; and said stenographer may be ap- 
pointed Deputy Clerk of said Court without extra pay. 

1930, XXXVI, 1131. 

§ 261. Sheriff — Compensation. — The Sheriff of the County shall attend up- 
on all sessions of the said County Court, and shall be subject to the orders there- 
of, and shall execute orders, writs and mandates of the said County Court, as 
required by law of him with reference to the Circuit Court. For all such serv- 
ices he shall receive the same compensation as is allowed by law for similar serv- 
ices in the Circuit Court : Provided, That for serving each venire for the County 
Court, the Sheriff shall receive the sum of ten dollars. 

1930, XXXVI, 1131. 

§ 262. Bailiffs' Compensation. — The presiding Judge of the said County 
Court may appoint a sufficient number of bailiffs, not exceeding two, to attend 
upon the said Court, and be subject to the orders thereof. Such bailiffs shall re- 
ceive as compensation for their services one dollar per day for the time actually 
engaged, and shall not be retained in attendance upon the Court longer than the 
exigencies of the business of the Court shall require. 

1930, XXXVI, 1131. 

§ 263. Jurors — Compensation — Witnesses — Compensation.— Petit jurors in 
attendance upon the sessions of the said Court shall receive as a compensation 
for their services two dollars per day, and five cents per mile for necessary 
travel in going to and returning, from the County Seat. Witnesses in attendance 
upon the said County Court shall receive the same compensation as witnesses in 
attendance upon the Circuit Court. 

1930, XXXVI, 1131. 

§ 264. Pleadings — Rules of Practice — Evidence. — The same forms of plead- 
ing and the same rules of practice and evidence shall obtain in the said Civil 
and Criminal Court as are provided by law for the conduct and trial of civil 
cases in the Circuit Courts. 

1930, XXXVI, 1131. 



§ 265 



Code of Civil Procedure 



87C 



§ 265. Terms. — The said Court shall hold its session in the County court 
house, at the County seat of the County of Sumter, the first session to be held 
on the first Monday of the calendar month next succeeding the appointment and 
qualification of the Judge thereof and thereafter a term shall be held beginning 
on the first Monday in each and every month. The said Court shall continue in 
session in each of its said terms until the business before it has been disposed of, 
and shall be open for the trial of cases from the beginning to the end of each of 
its said terms. The Judge of the said Court shall maintain open Court at all 
times for the hearing of causes without a jury, provided that during the month 
of August of each year there shall be no session of said Court held : Provided, 
That the Judge of said Court may by order postpone or suspend any term of 
said Court at his discretion. 

1930, XXXVI, 1131. 

§ 266. Transfer of Cases. — ^All cases now pending in the Circuit Court of 
which the said Civil and Criminal Court shall have jurisdiction shall be trans- 
ferred to the said Civil and Criminal Court for trial upon motion by either 
party thereto. 

1930, XXXVI, 1131. 

§ 267. Appeals. — ^Appeals shall be taken from said Civil and Criminal 
Court in all cases beyond the jurisdiction of Magistrates direct to the Supreme 
Court and shall be presented in the same manner and under the same rules as 
are now prescribed for appeals from the Circuit Court : Provided, however, That 
all appeals from said Court involving matters within the, jurisdiction of a 
Magistrate shall be appealed to the Circuit Court. 

1930, XXXVI, 1131. 



CHAPTER 7. 
Civil and Criminal Court of Charleston 



268. Establishment. 

269. Jurisdiction. 

270. Judge. 

271. Ministerial Magistrates. 
272-3. Jurors. 

274. Criminal Cases. 



275. Contempt. 

276. Clerk. 

?^~ Ptv of Jurors, Sheriff, Clerk. 
278. Appeal. 
2i.». J idgment. 
280. Procedure. 



§ 268. Coiirt Established. — A Court inferior to the Circuit Courts, and to 
be known as "The Civil and Criminal Court of Charleston," is hereby estab- 
lished for the City of Charleston, and the territory adjacent thereto in the Coun- 
ty of Charleston, Avithin the late parish of St. Philips, outside of said city, and 
north of Line street therein between the Ashley and Cooper Rivers. 

Civ. P. '22, § 2,32; Civ. P. '12, § 1421; Civ. P. '12, § 98. 

§ 269. Jurisdiction.— The said Civil and Criminal Court shall have such 
jurisdiction as heretofore provided for by law for the Judicial Magistrate's 
Court in said city and county, and in all civil actions heretofore cognizable with- 
in the said territorial limits, wherein the amount sued for or the value of the 
property claimed, exclusive of costs, does not exceed five hundred dollars; but 
such jurisdiction shall not extend to cases where the title to real estate is in 
question, nor to cases in chancery, and shall be concurrent with the Courts of 
Common Pleas therein, in matters within the jurisdiction of the Court herein 
established. 

Civ. P. '22, § 233 ; Civ. P. '12, § 1422 ; Civ. P. '12, § 99 ; 1911, XXVII, 16 ; 1912, XXVII, 
585. 



87D Code of Civil Procedure § 270 

§ 270. Presiding Judge — Compensation. — The presiding Judge of said Civil 
and Criminal Court shall be an attorney at law, -resident within said territory, 
and shall be by the Governor commissioned as such, subscribe the oath of office 
therefor, and shall hold his office for a term of four years, and until his suc- 
cessor, who shall be elected in the same manner as is now provided by law for 
the election of a Probate Judge in the County of Charleston, has been elected 
'and qualified. In the absence or disability of the Recorder he is authorized to 
preside over the Recorder's Court for the City of Charleston: Provided, That in 
case of the disability, or inability from any cause, death or resignation of the 
Judge of said Court, the Recorder of the City of Charleston shall temporarily 
fill the place, until the Governor shall fill the vacancy as provided by law for 
vacancies in a county office. He shall receive as compensation for his services the 
sum of eighteen hundred dollars ($1,800.00) per annum, from the time of the 
issuance of his commission, to be paid by the County Treasurer of said County 
of Charleston as the Judicial Magistrate and all other Magistrates therein have 
heretofore and are now paid, and he is prohibited from practicing as an attor- 
ney in said Court, or any other Court inferior to the Circuit Court, except the 
Probate Court. 

Civ. P. '22, § 234; Civ. '12, § 1423; Civ. P. '12, § lOO ; 1911, XXVII, 16; 1912, XXVII, 
585; 1913, XXVIII, 6; 1918, XXX, 755. 

§ 271. Ministerial Magistrates. — All summons and other process for said 
Civil and Criminal Court shall be issued exclusively by one of the ministerial 
magistrates in said territorial jurisdiction, except in cases wherein the amount 
sued for or the value of the property claimed exceeds one hundred dollars, 
wherein the practice, pleadings, forms and modes of procedure of force in the 
Courts of Common Pleas shall be, and they are hereby, made applicable to and 
to be followed in said Civil and Criminal Court. The jurisdiction, powers and 
duties of the said ministerial magistrates being hereby and in no way increased 
or diminished, but they are to perform the same to the said Civil and Criminal 
Court as they heretofore did to the Judicial Magistrate's Court, and in lieu and 
stead thereof. 

Civ. P. '22, § 235; Civ. '12, § 1424; Civ. P. '12, § 101; 1911, XXVII, 16. 

§ 272. Jury Trial. — On the first day of each week preceding the week in 
which jury trials are to be held the docket shall be called, at which time any 
party in any civil cause who shall desire a jury trial, shall at that time make 
demand for the same ; the jury to consist of six persons to be empanelled as fol- 
lows : The Clerk of said Court shall furnish to the parties or their attorneys a 
list of twelve of the jurors to be drawn and selected by ballot from the whole 
number of jurors who are in attendance, from which lists the parties or their 
attorneys shall alternately strike until there shall be but six left, which shall 
constitute the jury to try the case. If any person summoned to attend upon said 
Court shall neglect or refuse to appear, without sufficient legal excuse, he shall 
forfeit and pay to the said county a fine of five ($5) dollars, for which judgment 
may be forthwith entered in said Court against him, and execution issued there- 
for, together with the sum of five ($5) dollars cost, for the officer of said Court 
entering such judgment and levying such execution, and such judgment and 
execution shall be of the same force and effect as are all other judgments and 
executions for said Court. 

Civ. P. '22, § 236; Civ. '12, § 1425; Civ. P. '12, § 102; 1911, XXVII, 16; 1912, 
XXVII, 586; 1913, XXVIII, 7. 

§ 273. Preparation of Jury Box — Custody. — The County Auditor, the 
County Treasurer and the Clerk of the said Civil and Criminal Court shall 



§ 274 Code of Civil Procedure 87E 

constitute the Jury Commissioners of said Court, to serve without compensa- 
tion. They shall during the month next succeeding the approval of this Act, 
and thereafter during the month of January next succeeding every general elec- 
tion for State officers prepare a list of not less than fifteen hundred of the 
qualified electors residing within the jurisdiction of the Court, now or hereafter 
qualified by law to act as jurors, and shall cause the said names each one to be 
written on a separate piece of paper or ballot, and shall fold up such pieces of 
paper or ballots so as to resemble each other as much as possible, so that the 
name thereon shall not be visible from the outside, and shall place them in a jury 
box to be furnished by the County Commissioners for that purpose, and all 
names for jurors for said Court shall thereafter be drawn from said box in the 
manner herein provided. It shall be the duty of the Clerk of said Court to keep 
said jury box in his custody, and such jury box shall be provided with two locks, 
each different ; a key to one luck shall be kept by the Clerk of said Court, and one 
by the Judge of said Court, so that neither of said parties shall hold keys to the 
same lock. And it shall be the duty of the County Board of Commissioners for 
the County of Charleston to furnish to the said Jury Commissioners above men- 
tioned a jury box of sufficient size and without any compartments therein, so 
that when all the separate pieces of paper or ballots aforesaid shall be folded 
and enclosed therein they may be capable of being readily shaken out and inter- 
mixed in such box. Not less than ten days nor more than twenty days before the 
first day of each week in which jury trials are to be held, the Judge and Clerk of 
the said Court shall proceed to draw indiscriminately from the said jury box, 
twenty persons to serve for such week only, and the Clerk of said Court shall 
issue his writ of venire facias for such jurors requiring their attendance on the 
first day of the week for which they have been drawn; and the said writ of 
veiiire facias shall be forthwith delivered to the Sheriff of Charleston County 
for execution by him and he shall make his returns thereon at least two days be- 
fore the day when the jurors are required to attend : Provided, That whenever it 
shall be necessary to supply any deficiencies in the number of jurors duly 
drawn, the Judge and Clerk of said Court shall draw from the jury box such 
number of jurors as shall be necessary, in which case venires shall be served and 
returned, and jurors required to attend on such days as the Court shall direct. 

Civ. P. '22, § 237 ; Civ. '12, § 1426 ; Civ. P. '12, § 103 ; 1911, XXVII, 16 ; 1912, XXVII, 

587. 

§ 274. Prosecution of Criminal Cases. — In all criminal cases the prosecu- 
tion may be represented by any reputable attorney at law, employed by the 
prosecution, or the Solicitor of the Circuit may be required to attend and be in 
charge thereof, in the discretion of the presiding Judge, or of his own volition. 

Civ. P. '22, § 238; Civ. '12, § 1427; Civ. P. '12, § 104; 1911, XXVII, 19. 

§ 275. May Punish for Contempt. — The said Civil and Criminal Court shall 
have full power and authority to punish for contempt any contempts of its au- 
thority, and for such contempt may impose punishment by fine not exceeding 
fifty dollars, and imprisonment not exceeding forty-eight hours, either or both. 

Civ. P. '22, § 239 ; Civ. '12, § 1428 ; Civ. P. '12, § 105 ; 1911, XXVII, 19 ; 1912, XXVII, 

588. 

§ 276. Judge May Appoint Clerk — Duties. — The Judge of said Court shall 
have the authority to appoint a Clerk of said Court, who shall hold the term of 
office for two years from date of appointment ; said Clerk shall also be invested 
with the same powers and duties as are now or which hereafter may be de^ 
volved upon Magistrate's Constables. He shall give bond and qualify as a con- 
stable of said Court; and shall receive as compensation the sum of forty ($40) 



87F Code of Civil Procedure § 277 

dollars per month, to be paid in the same manner as was paid the salary of the 
Clerk or Constable of the Judicial Magistrate. The duties of said Clerk shall be 
the same as those heretofore performed by the Clerk of the Judicial Magistrate, 
and to preserve order in said Court, and call to his aid a person or persons to 
preserve order therein, who shall be compensated by him out of the fees here- 
inafter provided for ; and such person or persons, when so called, shall have the 
like power of the Magistrate's Constables. 

Civ. P. '22, § 240 ; Civ. '12, § 1429 ; Civ. P. '12, § 106 ; 1911, XXVII, 20 ; 1913, XXVIII, 8. 

§ 277. Pay of Jurors, Sheriff, Clerk. — Jurors shall receive one dollar per 
day, to be paid by the County Treasurer on the order of the Judge and Clerk 
of said Court. The Sheriff shall be entitled to tifty cents for each juror sum- 
moned. In civil cases and special proceedings, where the amount involved is less 
than one hundred dollars, there shall be paid in advance to the said clerk the 
sum of fifty cents, and in all larger amounts the sum of one dollar, as a docket- 
ing fee, and in lieu of all other costs in said Court whatsoever. 

Civ. P. '22, § 241 ; Civ. '12, § 1430 ; Civ. P. '12, § 107 ; 1911, XXVII, 20 ; 1912, XXVII, 

588. 

§ 278. Appeal Allowed. — Appeal shall be from the said Civil and Criminal 
Court, in all cases now allowed by law from the ordinary Magistrate's Courts, 
to be presented in the same manner and under the same regulations as therein 
prescribed, except that instead of the testimony being in all cases taken down in 
writing and signed by the witnesses, the testimony shall be taken stenographical- 
ly by a stenographer to be appointed by the Judge of said Court, who shall re- 
ceive as compensation the sum of two hundred dollars per annum, to be paid by 
the County Treasurer : Provided, That in cases where the amount sued for 
exceeds one hundred dollars, the appellant shall have ten days in which to serve 
notice of appeal. 

Civ. P. '22, § 242 ; Civ. '12, § 1431 ; Civ. P. '12, § 108 ; 1911, XXVII, 20 ; 1912, XXVII, 
589. 

§ 279. Entry of Judgments, Execution and Transcript. — All judgments 
shall be entered, execution issued thereon, or transcript thereof be made, as now 
provided by law for the judgment rendered in said Judicial Magistrate's Court. 

Civ. P. '22, § 243 ; Civ. '12, § 1432 ; Civ. P. '12, § 109 ; 1911, XXVII, 21. 

§ 280. Rule of Practice, Pleadings, Forms and Mode of Procedure; and 
Time for Holding Court. — The rules of practice, pleadings, forms and modes 
of procedure now applicable to and heretofore governing the said Judicial 
Magistrate 's Court shall be applicable to and govern the said Civil and Criminal 
Court, except as herein otherwise provided for. The said Court shall be held on 
every day of the week except Monday, Saturday, Sunday and public holidays, 
and may be held on any secular day. The week commencing with the first Mon- 
day in every month, and such other times as the Judge in his discretion may fix, 
shall be set aside for jury trials : Provided, That there shall be no jury trials of 
civil cases during the months of July, August and September. The place for 
holding such Court shall be provided by the County Commissioners of Charles- 
ton County, and may be the place at which the Judicial Magistrate's Court has 
heretofore been held, and all books, dockets and other stationery necessary for 
the business of said Court shall likewise be provided by said County Commis- 
sioners. 

Civ. P. '22, § 244 ; Civ. '12, § 1433 ; Civ. P. '12, § 110 ; 1911, XXVII, 21 ; 1912, XXVII, 
589; 1913, XXVIII, 8. 



§ 281 Code of Civil Proceduee 88 

CHAPTER 8 

The City Court and the Police Court of Charleston 

281-2. Recorder. 291. Jurisdiction. 

283. Jurisdiction. 292. Appeal. 

284-8-295 Jury. . 293. Transfer of Judgments. 

289. Rules of Practice. 294-5. Clerk and Sheriff. 

290. Writs and Processes. 296. Fees. 

297-303. Police Court. 

§ 281. Court Held by Recorder of Charleston — Salary. — The Court hereto- 
fore established and called the City Court of Charleston shall be held by the 
Recorder of the City of Charleston ; and the City Council shall fix and provide 
such compensation for the Recorder as may be fit and proper, and proportioned 
to the importance of his station, which compensation shall not be increased or 
diminished during his continuance in office, to be paid by the city. 

Civ. P. '22, § 245 ; Civ. '12, § 3874 ; Civ. 02, § 2777 ; G. S. 2125 ; R. S. 2257 ; 1801, VII, 
300; 1820, VII, 322; 1903, XXIV, 89. 

§ 282. Appointment of Recorder — Term of Office — Sessions of Court. — 

The said Recorder shall be appointed by the City Council of Charleston, and 

hold his commission during good behavior ; and he shall sit at such times as may 

be fixed by the ordinances of the City Council of Charleston from time to time. 

Civ. P. '22, § 246; Civ. '12, § 3875; Civ. '12, § 2778; G. S. 2126; R. S. 2258; 1783, 
VII, 99; 1856, XII, 488. 

§ 283. Jurisdiction of Court. — The jurisdiction of the City Court of Charles- 
ton shall be limited to the trial of causes arising under the ordinances of the City 
Council of Charleston. 

Civ. P. '22, § 247; Civ. '12, § 3876; Civ. '02, § 2779; G. S. 2127: R. S. 2259; 1856, 
XII, 488; 1896, XXII, 14. 

§ 284. Jury. — All issues, controversies and litigations in the said Court, if 
demanded by either party, shall be tried by a jury composed of six persons, ac- 
cording to the regulations and forms prescribed by law in cases of trial by jury, 
and as hereinafter proAdded. 

Civ. P. '22, § 248; Civ. '12, § 3877; 1903, XXIV, 89. 

§ 285. Jury Commissioners for Recorder's Court of City of Charleston — 
Preparation of Jury Box. — The Mayor and the Clerk of City Council of 
Charleston are hereby declared to be the Jury Commissioners for the Record- 
er's Court for the City of Charleston, and shall, within ten days after the ap- 
proval of this Act, and within the first ten days of each year thereafter, prepare 
and place in a box, to be known as the Jury Box, the names of five hundred cit- 
izens residing within the corporate limits of said city eligible to do jury duty and 
of good moral character, and shall lock and keep said jury box convenient for 
the drawing of a jury, as hereinafter specified. If the number of names in the 
box be reduced to less than two hundred names, then the box shall be refilled to 
the full number in the same manner as herein provided : Provided, That no 
venire facias shall at any time issue for more than eighteen jurors to serve at 
one Court, from whom a jury (or two juries, if the Recorder shall regard more 
than one jury necessary for the proper dispatch of the business before the 
Court), shall be empanelled; and in case of non-attendance of the jurors so 
drawn and summoned, their places may be supplied by talesmen, drawn in the 
usual mode ; but no person shall be liable to serve twice until all the names in 
the said jury box shall be drawn out. 

Civ. P. '22, § 249; Civ. '12, § 3878; 1903, XXIV, 89; 1917, XXX, 146. 



89 Code of Civil Procedure § 286 

§ 286. Drawing of Jury. — In all criminal cases in said Eecorder's Court, 
in which a jury may be demanded by either the City or the dependant a jury 
shall be selected in the following manner: The Clerk or Acting Clerk of Re- 
corder's Court shall draw out of the jury box, referred to in Section 285, 
eighteen ballots, each containing the name of an eligible juror, and list the 
said eighteen names in duplicate, delivering one copy of same to the attorney for 
the city, if he be present ; if not, to the Chief of Police, or some officer designated 
by said Chief, and one copy to the defendant, or his attorney. 

Civ. P. '22, § 250; 1917, XXX, 147. 

§ 287. Selection of Jury — Challenges. — The said Clerk shall place the 
eighteen ballots, so drawn out, in some box or hat, and said Clerk shall shake 
them together, and then the said Clerk shall draw out one, and the person so, 
drawn out shall be one of the jury, unless challenged by either party; and so 
proceed until he shall have drawn six, who shall not have been challenged; 
neither party being allowed more than six challenges; but, if the first twelve 
drawn shall be challenged and parties do not agree to a choice, the last six shall 
be the jury, and when any of the six jurors, so drawn, cannot be had or are dis- 
qualified by law to act in such case, and the parties do not supply the vacancy 
by agreement, the said Clerk shall proceed to draw out of said jury box ballots 
for three times the number thus deficient, which shall be disposed of and be 
drawn as above provided. 

Civ. P. '22, § 251; 1917, XXX, 147. 

§ 288. Qualifications of Jurors. — All persons possessing the qualifications 
prescribed for jurors by the laws of the State, and usually residing in the city, 
or who have resided therein for four months before their being sworn, and there 
being at the time of being drawn and summoned, shall be liable to serve as jurors 
in the said Court, saving and reserving to all persons all lawful excuse and ex- 
emptions as in other Courts. 

Civ. P. '22, § 252; Civ. '12, § 3879; 1903, XXIV, 89. 

§ 289. City Council and Recorder to Prescribe Rules of Practice, etc. — It 

shall be lawful for the City Council and the said Recorder to prescribe, and from 
time to time to regulate, the practice of the said Court, and of the attorneys 
therein, conformably to this Chapter, and as nearly as may be to the forms and 
rules used in the Circuit Courts of this State, and the proceedings shall be the 
same substantially as in like cases; except in cases for the violation of ordi- 
nances, when imprisonment is imposed in addition to or in the alternative of a 
fine, in which case the prosecution shall be in the form of an information on the 
official oath of the Corporation Counsel. 

Civ. P. '22, § 253 ; Civ. '12, § 3880 ; 1903, XXIV, 89. 

§ 290. Writs and Processes Shall be Issued by Clerks. — All writs and proc- 
cesses shall be issued by the Clerk of the said Court, and shall be made re- 
turnable to the first day of the term next succeeding the issuing of the same. 

Civ. P. '22, § 254 ; Civ. '12, § 3881 ; 1903, XXIV, 89. 

§ 291. Jurisdiction of Court. — The said Court is invested with power and 
authority to grant rules, to hear and determine motions for new trials, in arrest 
of judgment, and all questions of law arising out of causes within its jurisdic- 
tion; to issue subpoenas for the attendance of witnesses, to grant commissions 
for the examination of witnesses, to issue executions of fieri facias against the 
real and personal property of defendants, to issue writs of capias ad respon- 
dendum, to punish for contempt, and also all other the usual process, according 



§ 292 Code of Civil Procedure 90 

to the known and approved rules of the common law and of the Acts of the As- 
sembly in such cases provided ; the Kecorder shall have the same powers in the 
discharge of his duties as the Judges of the Court of Sessions and Common 
Pleas in like cases : but it is hereby declared and provided that no process or 
writ issuing out of the said Court shall extend or be of force for service or 
execution out of the limits of the said city, except commissions to examine wit- 
nesses ; and all writs shall be served and returned ten days before the sitting of 
the Court aforesaid. 

Civ. P. '22, § 255; Civ. '12, § 3882; 1903, XXIV, 89. 

§ 292. Right of Appeal. — All parties shall have the same right of appeal to 
the Supreme Court from the decisions of the said City Court, in the same form 
which is now or may be lawful for parties in the Circuit Courts in like cases, and 
the Supreme Court shall hear and determine such appeals in the same manner 
as appeals from the Circuit Court of Charleston County. 

Civ. P. '22, § 256; Civ. '12, § 3883; 1903, XXIV, 89. 

§ 293. Judgments to be Transferred to Circuit Court Offices. — All Judg- 
ments in the office of the Clerk of the said City Court, and all executions, writs 
and processes in the office of the Sheriff of the City of Charleston, other than 
judgments, executions and processes arising under the ordinances of the City 
Council of Charleston, shall be transferred, respectively, to the offices of the 
Clerk of the Circuit Court and of the Sheriff of the County of Charleston, which 
causes, judgments, executions, writs and processes shall be of like validity and 
force as if the same had originated or been sued out of the Circuit Court for the 
said County. 

Civ. P. '22, § 257; Civ. '12, § 3884; 1903, XXIV, 89. 

§ 294. Clerk and Sheriff to Have Same Powers as Those of Circuit Court. 

— The Clerk and Sheriff of the said City Court of Charleston shall have the 
same powers and authority in all cases within the jurisdiction of the said Court 
as the Clerks and Sheriffs of the Circuit Courts. 
Civ. P. '22, § 258; Civ. '12, § 3885; 1903, XXIV, 89. 

§ 295. To Draw Jury in Recorder's Absence. — In case of the sickness or 
absence from the State of the Recorder, they shall have power, and are hereby 
authorized and required to draw juries for the succeeding term. 

Civ. P. '22, § 259 ; Civ. '12, § 3886 ; 1903, XXIV, 89. 

§ 296. Fees the Same as Circuit Court. — The charges and fees of the sev- 
eral officers of the City Court shall be the same as in the Circuit Court in like 
cases. 

Civ. P. '22, § 260; Civ. '12, § 3887; 1903, XXIV, 89. 

§ 297. Police Court Established. — There shall be established a Court in 
the City of Charleston knov/n as the Police Court of the City of Charleston, 
which shall be held by the Recorder of the City of Charleston. The said Re- 
corder, and any Magistrate holding the Police Court of the City of Charleston, 
in the case of absence, sickness or other disability of such Recorder, is invested 
with jurisdiction to hear and determine all cases of a criminal nature occurring 
within the limits of the City of Charleston, which are not within the exclusive 
jurisdiction of the Court of General Sessions : that is to say, any such officer 
holding the Police Court shall have jurisdiction of all offenses committed with- 
in the limits of the City of Charleston on arrest by the police or municipal au- 
thorities, which may be subject to the penalties of fine or forfeiture not ex- 
ceeding one hundred dollars, or imprisonment, with or without hard labor, not 



91 Code of Civil Procedure § 298 

exceeding thirty days, and may impose any sentence within these limits singly 
or in the alternative. 

Civ. P. '22, § 261 ; Civ. '12, § 3888 ; 1903, XXIV, 89. 

§ 298. Examination of Persons Arrested in Police Court. — Upon the sworn 
information of any member of the police force or municipal officer, any such of- 
ficer holding the said Police Court as aforesaid, shall proceed to the examina- 
tion of any charge against any person arrested and brought before him, and 
upon the same appearing not to be within the jurisdiction of the said Police 
Court, he shall refer the same to a Ministerial Magistrate as such for examina- 
tion, to be by such Ministerial Magistrate referred to the Civil and Criminal 
Court of Charleston, or Court of General Sessions, as may be proper. 

Civ. P. '22. § 262; Civ. '12, § 3889; Civ. '02, § 2781; 1897, XXII, 412; 1903, XXIV, 
89; 1911, XXVII, 21. 

§ 299. Forfeiture of Deposit in Police Court. — Upon any charge made as 
above against any person released on deposit and not appearing when called, any 
such officer holding the said Police Court shall order the said deposits forfeited. 

Civ. P. '22, § 268 ; Civ. '12, § 3890 ; Civ. '02, § 2782 ; 1903, XXIV, 89. 

§ 300. Jury may be Demanded in Police Court. — In the trial of any case 
in the said Police Court, upon the demand for a jury, the same shall be sum- 
moned and empanelled in the said Police Court, in accordance with the law for 
empanelling juries in Magistrates' Courts. 

Civ. P. '22, § 264; Civ. '12, § 3891; Civ. '02, § 2783; 1903, XXIV, 89. 

. § 301. Sworn Stenographer may Transcribe Testimony in Police Court.— 

In taking of testimony and preparation of the record in cases of appeal from the 
said Police Court, the transcript of the notes of the testimony taken of the trial 
by a sworn stenographer shall be held to be equivalent to the testimony signed 
by the witnesses, and the Recorder is hereby authorized and empowered to ap- 
point a suitable person as official stenographer of said Police Court, who, after 
being duly sworn, shall take all testimony before said Police Court. 
Civ. P. '22, § 265 ; Civ. '12, § 3892 ; Civ. '02, § 2784 ; 1903, XXIV, 89. 

§ 302. PoHce Officer to be in Attendance. — It shall be the duty of one of 
the officers of the police force to be in constant attendance on said Court, and to 
take proper measures for the safe keeping of the prisoners and for carrying 
into effect the orders of said Court. 

Civ. P. '22, § 266 ; Civ. '12, § 3893 ; Civ. '02, § 2785 ; 1903, XXIV, 89. 

§ 303. Recorder not to Appear in any Cause Heard by Him. — The said 
Recorder shall not be permitted to plead in a Superior Court in any cause which 
has been argued before or adjudged by him. The Recorder is hereby clothed 
with all the powers, duties and jurisdiction of a Judicial Magistrate, except that 
he shall not receive any additional compensation, and shall not have the au- 
thority of a Magistrate to appoint a Constable. In case of the sickness or other 
unavoidable absence of the Recorder, the Police Court shall be held by one of the 
Aldermen of the City of Charleston, or by one of the Magistrates for Charles- 
ton County, as may be designated by the Mayor. 

Civ. P. '22, § 267; Civ. '12, § 3894; 1903, XXIV, 89. 



§ 304 Code of Civil Procedure 92 

CHAPTER 9 

Attorneys, Solicitors and Counsellors 

304. Practicing without License. 312. Graduates of South Carolina Law 

305. License Granted by Supreme Court. Schools. 

306. Law Examiners. 313. Oath and Roll. 

307. Examination. 314-15. Removal or Suspension. 

308. Qualifications. 316. Speculating. 

309. Compensation of Board. 317. Limit of Argument. 

310. Rules. 318. Appearance by citizen. 

311. Attorneys from other States. 319-25. Disbarment Procedure. 

§ 304. Penalty for Practicing Unless Admitted and Sworn. — No person 

whatsoever shall practice or solicit the cause of any other person in any Court 

of this State unless he has been admitted and sworn as an attorney, under a 

penalty of five hundred dollars for every cause he shall so solicit, one-half to the 

State and the other half to him or them that will sue for the same. 

Civ. P. '22, § 268; Civ. '12, § 3908; Civ. '02, § 2811; G. S. 2159; R. S. 2287: 1721, 
VII, 173. 

§ 305. License to be Granted only by Supreme Court. — No original license 

to practice as an attorney, solicitor or counsellor shall be granted except by the 

Supreme Court. 

Civ. P. '22, § 269; Civ. '12, § 3909; Civ. '02, § 2812; G. S. 2161; R. S. 2288; 1878, 
XVI, 472. 

§ 306. Supreme Court to Appoint Law Examiners to Examine Applicants. 

—All applications for admission to the bar in the State shall be made by peti- 
tion to the Supreme Court. A State Board of Law Examiners is hereby created 
to consist of three members of the bar, of at least ten years standing, who shall 
hold office for the term of three years. Said appointment shall be made as fol- 
lows : The Supreme Court shall appoint three law examiners, who must be 
actually engaged in the practice of law. Said examiners shall hold office for one, 
two and three years, respectively, to be designated by the Justices of the Su- 
preme Court. After the first appointment the Supreme Court shall annually ap- 
point a member of said Board in the place of the examiner whose term shall 
expire. Members of said Board shall be eligible to reappointment for the term 
of three years. In case of any vacancy in said Board by reason of death, resigna- 
tion or otherwise, the Supreme Court shall fill said vacancy by the appointment 
of a member of said Board to serve until the expiration of the term for which 
the person so dying or resigning had been appointed. Not more than one mem- 
ber of said Board shall be appointed from any one Congressional District. 
Civ. P. '22, § 270; Civ. '12, § 3910; 1910, XXVI, 750. 

§ 307. Examination — Report — Oath. — ^All applications for admission to the 
bar shall be referred by the Supreme Court to the State Board of Law Examin- 
ers, who shall examine the applicant, touching his qualifications for admission to 
the bar. The said Board shall report their proceedings in the examination of ap- 
plicants to the Supreme Court, with any recommendations said Board may de- 
sire to make. If the Supreme Court shall then find the applicant to be qualified 
to discharge the duties of an attorney, and to be of good moral character and 
worthy to be admitted, they shall pass an order admitting him to practice in the 
Courts of this State, on his taking and subscribing the oath required by Section 
26, Article III of the Constitution, and the oath respecting dueling. 

Civ. P. '22, § 271; Civ. '12, § 3911; 1910, XXVI, 750. 

§ 308. Qualifications. — Every applicant for admission must present to the 
Board of Examiners satisfactory proof, in writing, by examination, or otherwise, 



93 Code of Civil Procedure § 309 

as the Board may direct, that he has had a preliminary, general education, 
equivalent to that of a graduate of a high school of this State, and must also pre- 
sent such proof as the Board directs that he has studied law in a law school in 
any part of the United States, or in the office, under the direction of a member 
of the bar of this State, for a period of two years, during at least thirty-six weeks 
in each year : Provided, That if the applicant produces satisfactory proof to the 
Board that he has studied law in a law school in any part of the United States, 
or in the office, or under direction of a member of the bar of this State for a 
period of two years, during at least thirty-six weeks in each year, such applicant 
shall be eligible to admission to practice law in this State upon standing a satis- 
factory examination before said Board. And each application shall be accom- 
panied by an application fee of five dollars to be paid to the Clerk, and should 
the applicant be admitted to practice he shall pay an additional fee of five dollars 
as an admission fee, to be paid to the State Treasurer : Provided, further, That 
women shall be allowed to practice law within the State of South Carolina under 
the same rules, regulations and conditions prescribed for the men of the said 
State. 

Civ. P. '22, § 272; Civ. '12, § 3912; 1910, XXVI, 750; 1918, XXX, 779. 

§ 309. Compensation of Board. — Each member of the Board of Law Ex- 
aminers shall receive as compensation for his service the sum of one hundred 
and fifty dollars per annum, to be paid as the salaries of other State officers are 
paid. No other or further charges or fees shall be demanded of or collected from 
a person upon his admission to practice than the fees mentioned in Section 308. 

Civ. P. '22, § 273; Civ. '12, § 3913; 1910, XXVI, 750. 

§ 310. Rules. — The Justices of the Supreme Court shall have the power to 
pass such rules as may be necessary to carry into effect the provisions of this 
Chapter, and from time to time amend said rules as occasion may require. The 
said Board of Examiners may also make rules for their conduct and government, 
not inconsistent with the provisions of law, subject to the approval of the Su- 
preme Court. 

Civ. P. '22, § 274; Civ. '12, § 3914; 1910, XXVI, 750. 

§ 311. Attorneys from Other States. — Members of the bar of any State, 
District or Territory of the United States, who, for five years after admission, 
have been engaged as practitioners, judges or teachers of law, shall be admitted 
without examination on proof of good moral character, after becoming actual 
residents of this State. Members of the bar of any other State, District or Terri- 
tory of the United States, who may be employed as counsel in any case pending 
before any of the Courts of this State, may be admitted for all the purposes of 
the case in which they are so employed by the Court before which said case is 
pending, without examination. Nothing herein contained shall be construed to 
deprive Courts of this State of the power, as at present existing, of disbarring or 
otherwise punishing members of the bar. 

Civ. P. '22, § 275; Civ. '12, § 3915; 1910, XXVI, 750. 

§ 312. Graduates of Law Schools in South Carolina Excepted. — The pro- 
visions of Sections 306 to 311, inclusive, shall not apply to graduates of the Law 
Department of the University of South Carolina, or to the graduates of the Law, 
Department of any other college or university in this State which is a member of 
the Association of American Law Schools, but such graduates, upon the pro- 
duction of diplomas of graduation and satisfactory evidence of good moral char- 
acter, shall be admitted as heretofore. 

Civ. P. '22, § 276; Civ. '12, § 3916; 1910, XXVI, 750; 1925, XXXIV, 69. 



§313 Code of Civil Peocedure 94: 

§ 313. Oath — Roll. — The oaths required to be taken by this Chapter shall 

be administered in open Court, and the name of the person taking the same 

entered in a roll or book kept for that purpose, and a certificate of said oaths 

shall be filed in Court. 

Civ. P. '22, § 277; Civ. '12, § 3917; Civ. '02, § 2814; G. S. 2162; R. S. 2290; 1868, 
XIV, 96. 

§ 314. Removal or Suspension. — Attorneys, solicitors, and counsellors may 
be removed or suspended, and, also, in aggravated cases, imprisoned, not exceed- 
ing twenty-four hours, by the several Courts in which they have been admitted 
to practice, if, in the presence of such Court, they are guilty of any disorderly 
conduct causing an interruption of business or amounting to an open and direct 
contempt to the Court, his authority or person; but, subject to such removal, 
they shall hold their office for life. 

Civ. P. '22, §-278; Civ. '12, § 3918; Civ. '02, § 2815; G. S. 2163; R. S. 2291; 1868, 
XIV, 97. 

§ 315. Cause of Removal — Entitled to be Heard. — Any attorney, solicitor, 
or counsellor may be removed or suspended who shall be guilty of any deceit, 
malpractice, or misbehavior; but not until a copy of the charges against him 
shall have been delivered to him by the Clerk of the Court in which the pro- 
ceedings shall be had, and an opportunity shall have been given him of being 
heard in his defense. 

Civ. P. '22, § 279; Civ. '12, § 3919; Civ. '02, § 2816; G. S. 2164; R. S. 2292: 1868, 
XIV, 97. 

§ 316. Penalty for Speculating. — If any attorney, solicitor, or counsellor 
shall enter into any speculating practices, by purchasing or procuring to be 
purchased, any note or other demand for the purpose of putting the same in 
suit, w^hen otherwise the owner or holder thereof would not sue the same such 
attorney, solicitor or counsellor shall pay a fine of one hundred dollars, and 
shall thereafter be incapable of practicing as such in any Court, until restored 
by the Supreme Court. 

Civ. P. '22, § 280; Civ. 12, § 3920; Civ. '02, § 2817; G. S. 2165; R. S. 2293; 1868, 
XIV, 97. 

§ 317. Not to Argue Longer than Two Hours.— No attorney, solicitor, or 
counsellor shall be allowed to occupy more than two hours of the time of the 
Court in the argument of any cause, unless he shall first obtain the special per- 
mission of the Court to do so. 

Civ. P. '22, § 281; Civ. '12, § 3921; Civ. '02, § 2818; G. S. 2166; R. S. 2294; 1868, 
XIV, 97. 

§ 318. Citizens may Appear in Person or for Others Without Reward. — 

This Chapter shall not be construed so as to prevent a citizen from prosecuting 
or defending his own cause, if he so desires, or the cause of another, with leave 
of the Court first had and obtained : Provided, That he declare on oath, if re- 
quired, that he neither has nor will accept or take any fee, gratuity, or reward, 
on account of such prosecution or defense, or for any other matter relating to 
the said cause. 

Civ. P. '22, § 282; Civ. '12, § 3922; Civ. '02, § 2819; G. S. 2167; R. S. 2295; 1721, 
VII, 173; 1868, XIV, 97. 

§ 319. Disbarment Procedure. — The permanent Committee on Grievances 
of the South Carolina Bar Association is hereby constituted a Commission of 
Inquiry with full power and authority to investigate as to the existence of any 



95 Code of Civil Procedure § 320 

probable cause against any member of the Bar of South Carolina as to conduct 
contrary to law. 

Civ. P. '22, § 283 ; 1914, XXVIII, 588. 

§ 320. Committee may Cite Such Member of Bar to Appear Before it. — 

The said Committee is hereby authorized and empowered, if any sworn com- 
plaint shall be preferred in writing before it, and filed with its Chairman, 
against any member of the Bar of South Carolina for misconduct as an attorney 
at law, to cite such member of the bar to appear before it at such convenient 
place in the State as may be designated by the Chairman of the Committee to 
show cause why he should not be presented to the Supreme Court on such 
charges for disbarment or suspension : Provided, That the Committee shall only 
investigate such complaints as in the opinion of a majority of the Committee de- 
serve consideration. 

Civ. P. '22, § 284 ; 1914, XXVIII, 589. 

§ 321. Committee Make Investigation of its Own Motion. — The said Com- 
mittee, without the filing of any written complaint with its Chairman may, of its 
own motion upon a vote of a majority of the Committee, enter into the investi- 
gation of any misconduct of any member of the Bar with the same procedure as 
if a written complaint had been filed. 

Civ. P. '22, § 285 ; 1914, XXVIII, 589. 

§ 322. Powers of Committee. — The said Committee is hereby authorized 
and empowered in the investigation of such matters as shall come before it to> 
summon all necessary witnesses for such investigation, being hereby granted the- 
authority to issue requisite process therefor, and that said witness shall be paid 
the same per diem and mileage as is allowed all witnesses in the Courts of Com- 
mon Pleas in this State, the same to be paid by the county authorities of the 
county from which the complaint arises, upon the certificate of the Chairman of 
the said Grievance Committee ; and that the same right of pay for witnesses shall 
exist in case of any trial of such matter before the Supreme Court, hereinafter 
referred to, upon the certificate of the Clerk of the Supreme Court; that said 
Committee in such investigation and leading up thereto, shall have the power 
to require the production of all papers and documents, and the power to punish 
witnesses for contempt, or any contempt from any person that may arise during 
said investigation before the said Committee; that said Committee is also au- 
thorized through its presiding member to swear all witnesses with the oath 
usually administered in the Courts of Justice in this State. 

Civ. P. '22, § 286; 1914, XXVIII, 589. 

§ 323. Majority of Committee Must Be Present. — Before any of such 
charges as aforesaid can be investigated by said Committee a majority of said 
Committee, as appointed by the South Carolina Bar Association, must be pres- 
ent, and if the chairman thereof be absent the other members of the committee 
are authorized and empowered to select a temporary chairman. 

Civ. P. '22, § 287; 1914, XXVIII, 589. 

§ 324. Complainants and Respondents May Have Counsel. — ^At such hear- 
ings as aforesaid authorized, the complainants shall be allowed, if they so desire, 
to have counsel present and so shall the respondents, with the right to either side 
to produce witnesses to be sworn, and heard according to such rules and regula- 
tions as may be adopted by the said Committee. 

Civ. P. '22, § 288; 1914, XXVIII, 590. 



§ 325 Code of Civil Procedure 96 

§ 325. When Committee to Turn Over Records to Clerk of Supreme Court. 

— If said Committee, or a majority of those sitting in said investigation, con- 
elude that a reasonable probability exists for the charges made, they shall turn 
over to the Clerk of the Supreme Court of South Carolina the record in the ease 
for such action as said Court shall take thereon according to law and the exist- 
ing laws of this State as to the regulation of the conduct of the members of the 
Bar of the State of South Carolina, and that said Court shall notify the At- 
torney General and the Solicitor of the Circuit from which the case arises so 
that they shall appear before the Court as the representatives of the State. 
Civ. P. '22, § 289; 1914, XXVIII, 590. 



CHAPTER 10 
General Provisions Respecting the Administration of Justice 

326. Disqualification of Judge. 334-6. Deposits in Court. 

327. Rights not Affected by Race or Color. 337. Effect on Process of Failure of Court 

328. Prosecution by Federal Appointees. to Sit. 

329. Seals of Common Pleas Court. 338. Transcripts of Federal Judgments. 

330. Court Attendants Exempt from Arrest. 339-41. Deposits in Lieu of Bond. 

331. Contempt. 342. Payment of Small Sums to Minors. 

332. Breach of Peace within Court's Hear- 343. Time Limit for Filing Reports by Ref- 
ing. erees. 

333. Affirmation According to Profession. 

§ 326. When Judge Disqualified. — No Judge or other judicial officer shall 
preside on the trial of any cause where he may be connected with either of the 
parties, by consanguinity or affinity, within the sixth degree. 

Civ. P. '22, § 290 ; Civ. '12, § 3923 ; Civ. '02, § 2820. 

§ 327. Rights in Court not Affected by Race or Color. — Wherever authority 
has heretofore been conferred by law upon any free white person or persons to 
institute any suit or proceedings, or to prefer any information or complaint in 
any matter, civil, penal, or criminal, the same rights shall be enjoyed by, and 
the same remedies applicable to, all persons whatsoever, regardless of race or 
color subject to the same conditions, and none others. 

Civ. P. '22, § 291; Civ. '12^ § 3924; Civ. '02, § 2821; G. S. 2168; R. S. 2297; 1870, 
XIV, 338. 

§ 328. Persons Appointed by United States may Prosecute in Behalf of 
United States — Proviso. — It shall and may be lawful for all and every person 
or persons authorized and appointed by the United States for that purpose, in 
their name, and in their behalf, to commence and to prosecute to final decree, 
judgment, and execution, any action or actions, for the recovery from indi- 
viduals of debts due, and effects belonging to, the United States : Provided, That 
all and every such action shall be conducted in the same manner, and subject to 
the same rules and regulations, as when commenced by one citizen of this State 
against another citizen thereof, and that the defendant or defendants be al- 
lowed the same privileges and advantages as he, she, or they would be entitled 
to if sued by a citizen of this State. 

Civ. P. '22, § 292; Civ. '12, § 3925; Civ. '02, § 2822; G. S. 21^9;, R. S. 2298; 1785, 
IV, 667. 

§ 329. Seals of Courts of Common Pleas. — The Courts of Common Pleas 
shall, at the expense of the State, have a seal for each County, of an impression 
similar to that of the Court of Common Pleas in Charleston County, and uni- 
form with that seal : except that each seal shall in the legend have the name of 



97 Code of Civil Procedure § 330 

the Court in which it is used. The said seals shall always be affixed to such pro- 
ceedings of the said respective Courts as may require the same. 

Civ. P. '22, § 293 ; Civ. '12, § 3926 ; Civ. '02, § 2823 ; G. S. 2170 ; R. S. 2299 ; 1792, V. 211. 

§ 330. Attendants at Courts Exempt from Arrest. — All persons necessarily 

going to, and attending on, or returning from, the Courts of Record of this 

State (allowing thirty miles per day for the traveling of such persons), shall be 

free from arrest, except on criminal process for treason, felony, or breach of the 

peace. 

Civ. P. '22, § 294; Civ. '12, § 3927; Civ. '02, § 2824; G. S. 2171; R. S. 2300; 1785, 
VII, 219; 1798, VII, 286; 1819, XI, 41. 

§ 331. Penalty of Contempt of Court — Offenders to be Heard. — In case 
any person shall commit any misbehavior or contempt in any Court of judica- 
ture in this State, by word or gesture, it shall and may be lawful for the Judges 
of every such Court to set a fine on such offender, in any sum not exceeding fifty 
dollars, for the use of this State, and may commit the offender till payment ; but 
if any person shall in the presence and during the sitting of the Court, strike 
or use any violence therein, such person shall be fined at the discretion of the 
said Court, and shall be committed till payment: Provided, That no citizen of 
this State shall be sent to jail for any contempt of Court, or supposed contempt 
of Court, committed during the sitting of the Court, and in disturbance of the 
Court, until he be brought before the Court, and there be heard by himself or 
counsel, or shall stand mute. 

Civ. P. '22, § 295 ; Civ. '12, § 3928 ; Civ. '02, § 2825 ; G. S. 2172 ; R. S. 2301 ; 1731, III, 
283; 1811, V, 642. 

§ 332. Breach of Peace Within Hearing of Court. — ^When any affray shall 
happen during the sitting of any Court within this State, and within the hear- 
ing or to the disturbance of the Court, the Court shall order the Sheriff, or other 
lawful officer, to take the affrayers, or other disturbers of the peace, or those 
guilty of contempt, and bring the offender or offenders before the Court, and 
the Court shall make such order or orders thereon as is or may be consistent with 
law, justice, and good order. 

Civ. P. '22, § 296 ; Civ. '12, § 3929 ; Civ. '02, § 2826 ; G. S. 2173 ; R. S. 2302 ; 1811, V, 
642. 

§ 333. Witness, Jurors, or Party, may Aflfirm, According to his Profession. 

— Any juror, witness, or party to any proceeding, in any and all Courts of this 
State, may make solemn and conscientious affirmation and declaration, accord- 
ing to the form of his religious belief or profession, as to any matter or thing 
whereof an oath is required ; and such affirmation and declaration shall be held 
as valid and effectual as if such person had taken an oath on the Holy Evan- 
gelists. 

Civ. P. '22, § 297 ; Civ. '12, § 3930 ; Civ. '02, § 2827 ; G. S. 2174 ; R. S. 2303 ; 1721, III, 
281. 

§ 334. Moneys Paid into Court to be Deposited. — All moneys except fines 

and penalties paid under sentence in criminal cases, which shall be paid into the 

Circuit or Probate Courts of the State, or received by the officers thereof in 

causes pending therein, shall be immediately deposited in some incorporated 

State bank or National bank within the Circuit, of good credit and standing ; or 

if there be no such bank within the Circuit, then in such bank nearest to the 

place of holding the Circuit, in the name and "to the credit of the Court. 

Civ. P. '22, § 298; Civ. '12, § 3931; Civ. '02, § 2828; G. S. 2175; R. S. 2304; 1868, 
XIV, 16. 



§ 335 Code of Civil Procedure 98 

§ 335. How Money Deposited to be Drawn — Proviso. — No money deposited 
as aforesaid shall be drawn from said banks, except by order of the JMdge of 
said Courts, respectively, in term or in vacation, to be signed by such Judge, 
and to be entered and certified of record by the Clerk; and every such order 
shall state the cause in or on account of vv^hich it is drawn : Provided, That mon- 
ey paid into Court to be immediately paid out need not be so deposited, but 
shall be paid upon order of the Court. 

Civ. P. '22, § 299; Civ. '12, § 3932; Civ. '02, § 2829; G. S. 2176; R. S. 2305; 1868, 
XIV, 16. 

§ 336. Clerk to Obey Order of Court to Deposit — Penalty. — If any Clerk 
of such Courts, or other officers thereof, having received such moneys as afore- 
said, shall refuse or neglect to obey the order of such Court, for depositing the 
same as aforesaid, such Clerk or other officer shall be forthwith proceeded 
against by attachment for contempt. 

Civ. P. '22, § 300 ; Civ. '12, § 3933 ; Civ. '02, § 2830 ; G. S. 2177 ; R. S. 2306 ; 1868, 
XIV, 16. 

§ 337. Effect on Writs, etc., of Failure of Court to Sit as Required by Law. 

— No process pending in any Court shall be discontinued for or by reason of 
the failure to hold the Court upon the day appointed by law ; but in such case, 
all suits, process, matters and things depending shall be made to the next suc- 
ceeding Court in course in the same manner as if such succeeding Court had 
been the same Court to which such process stood continued, or such returns or 
appearances should have been made; and recognizances, bonds and obligations 
for appearances, and all returns shall be of the same force and validity for the 
appearance of any person or persons at such succeeding Court, and all sum- 
mons for witnesses as effectual as if the succeeding Court had been expressly 
mentioned therein ; and all causes depending on the docket, and undetermined 
at any adjournment to the Court in course, shall stand continued in the same 
order to such Court as fully as if such causes were called over and continued by 
order of Court. 

Civ. P. '22, § 301; Civ. '12, § 3934; Civ. '02, § 2831; G. S. 2178; R. S. 2307; 1785, 
VII, 218. 

§ 338. Transcripts of United States Courts' Decrees and Judgments Filed 
in Clerk's Office, etc. — Transcripts of any judgments or decrees rendered in 
a Circuit or District Court of the United States within this State, or of any 
other Federal Court which, by act of Congress, may create a lien, may be filed 
in the office of the Clerk of Court of any County within this State, and when 
so filed, shall be entered by the Clerk of the Court upon the Book of Abstracts 
of Judgments and duly indexed in the same manner as provided by law in ref- 
erence to judgments rendered by the Courts of this State ; and when so entered 
upon the Book of Abstracts of Judgments and duly indexed, such judgment 
shall constitute a lien upon the real estate of the judgment debtor to the same 
extent, and with the same effect, as provided by. law in reference to judgments 
and decrees rendered by the Courts of this State. 

Civ. P. '22, § 302 ; Civ. '12, § 3935 ; Civ. '02, § 2832 ; 1894, XXII, 718 ; 1928, XXXV, 
1214. 

§ 339. Money may be Deposited with Officer of Courts in Lieu of Bond.— 

Whenever in any civil or criminal proceedings in any of the Courts of this 
State a bond, recognizance or undertaking is authorized or required to be giv- 
en, it shall and may be lawful for the party or parties authorized or required to 
give the same to deposit in lieu thereof a sum of money, in lawful money of the 



99 Code of Civil Proceduke § 340 

United States of America, equal in amount to the bond, recognizance or under- 
taking so required or authorized to be given ; and such sum of money, when de- 
posited as in this Section provided, shall be held and taken as equivalent in all 
respects to the giving of such bond, recognizance or undertaking. 
Civ. P. '22, § 303 ; Civ. '12, § 3936 ; Civ. '02, § 2833 ; 1897, XXII, 424. 

§ 340. To Whom a Deposit in Lieu of Bond Must Be Paid. — Whenever 
such bond, recognizance or undertaking is required or authorized to be given 
in any civil or criminal proceedings in the Courts of Common Pleas or General 
Sessions of this State, the said sum of money deposited in lieu thereof shall be 
paid to the Clerk of the Court of Common Pleas and General Sessions in which 
said proceeding is pending; and whenever such bond, recognizance or under- 
taking is authorized or required to be given in the Supreme Court of this State, 
the said sum of money shall be paid to the Clerk of the Supreme Court; and 
whenever such bond, recognizance or undertaking is authorized or required to 
be given in any civil proceeding in the Probate Courts of this State, the said 
sum of money shall be paid to the Judge of the Court of Probate for the Coun- 
ty in which the said proceeding is pending; and whenever such bond, recog- 
nizance or undertaking is authorized or required to be given in any civil or 
criminal proceeding in a Magistrate 's Court or other Court of inferior jurisdic- 
tion, such sum of money shall be paid to the Clerk of the Court of Common 
Pleas and General Sessions for the County in which such Magistrate's Court or 
other Court of inferior jurisdiction shall be. 

Civ. P. '22, § 304 ; Civ. '12, § 3937 ; Civ. '02, § 2834 ; 1897, XXII, 424. 

§ 341. Receipt for Money Deposited in Lieu of Bond. — Whenever any sum 
of money is so deposited in lieu of a bond, recognizance or undertaking, the 
party depositing the same shall be entitled to a receipt therefor, stating that the 
same has been deposited, and is held for the same purpose as would have been 
specified and conditioned in the bond, recognizance or undertaking in lieu where- 
of the said sum of money is so deposited. 

When Money Deposited in Lieu of Bond to Be Paid Back.- — The party or 
parties so depositing a sum of money in lieu of a bond, recognizance, or under- 
taking shall be entitled upon application to the respective Courts wherein such 
deposits have been made, and subject to the order of which such funds are held, 
to receive back the same whenever the purposes for which the same have been 
received and deposited have been accomplished and the parties are entitled to 
repayment thereof. 

Civ. P. '22, § 305 ; Civ. '12, § 3938 ; Civ. '02, § 2835 ; 1897, XXII, 424. 

§ 342. Courts May Order Payment of Money to Minors, etc. — In cases 

where a minor becomes entitled to a sum of money not exceeding one hundred 

dollars in the settlement of estates, or under the judgment, order or decree of 

any Court, and such minor has no general or testamentary guardian to whom 

such sum may be paid, and whose estate, however derived, is, in the judgment of 

the Court in which the settlement is made, or the judgment, order or decree is 

rendered, too small to warrant the expense of the appointment of a guardian, it 

shall and may be lawful for such Court, or the Judge thereof, to make an order 

for the same to be paid to the minor, or the father or mother of such minor, or 

if the father and mother be dead, to some other person for the benefit of such 

minor as to such Court or Judge may seem best. 

Civ. P. '22, § 306; Civ. '12, § 3939; Civ. '02, § 2836; 1900, XXIII, 348; 1901, XXIII, 
635; 1910, XXVI, 683. 



§ 343 Code of Civil Proceduee 100 

§ 343. Time Prescribed Within Which Masters and Referees Must File 
Reports — Penalty — Extension. — In all cases referred to Masters and Referees 
by the Courts of Common Pleas, as now provided by law, the Masters or Referees 
shall make and file with the Clerks of the Courts of Common Pleas of their re- 
spective counties their reports within sixty days from the time the action shall 
be finally submitted to them, and in default thereof they shall not be entitled to 
any fees : Provided, That nothing herein contained shall prevent parties to said 
action or their attorneys from extending the time by mutual consent in writing. 

Civ. P. '22, § 307 ; Civ. '12, § 3940 ; Civ. '02, § 2837 ; 1893, XXI, 399. 



PART II 

Civil Actions 



Title 
Title 
Title 
Title 
Title 
Title 
Title 
Title 
Title 
Title 10. 
Title 11. 
Title 12. 
Title 13. 
Title 14. 
Title 15. 
Title 16. 
Title 17. 



9. 



General Provisions, § 344. 

Time of Commencing Civil Actions, § 348. 

Parties to Civil Actions, § 389. 

Place of Trial of Civil Actions, § 412. 

Manner of Commencing Civil Actions, § 419. 

Pleadings in Civil Actions, § 445. 

Provisional Kemedies in Civil Actions, § 490. 

Trial and Judgment in Civil Actions, § 576. 

"Witnesses and Evidence, § 656. 

Executions and Proceedings Supplementary to Execution, § 728. 

Costs in Civil Actions, § 748. 

Appeals in Civil Actions, § 763. 

Miscellaneous Provisions Kespecting Civil Actions, § 802. 

Actions in Particular Cases and Extraordinary Remedies, § 818. 

Proceedings for Relief of Persons Arrested in Civil Actions, § 843. 

Remedies Relating to Real Property, § 862. 

Definitions and General Principles, § 889. 



TITLE 1 

General Provisions 



344. Form of Action. 

345. Designation of Parties. 



346. Action on Judgment. 

347. Feigned Issues. 



§ 344. One Form of Action Established. — There shall be in this State but 
one form of action for the enforcement or protection of private rights and the 
redress of private wrongs, which shall be denominated a civil action. 

Civ. P. '22, § 308 ? Civ. P. '12, § 114 ; Civ. P. '02, § 89 ; 1870, XIV, § 92. 

§ 345. Parties now Designated. — In such action the party complaining 
shall be known as the plaintiff, and the adverse party as the defendant. 
Civ. P. '22, § 309 ; Civ. P. '12, § 115 ; Civ. P. '02, § 90 ; 1870, XIV, § 93. 

§ 346. Action on Judgment. — No action shall be brought upon a judgment 
rendered in any Court in this State, except a Court of Magistrate, between the 
same parties, without leave of the Court, or a Judge thereof, at chambers, for 
good cause shown, or notice to the adverse party; and no action on a judgment 
rendered by a Magistrate shall be brought in the same county within five years 
after its rendition, except in case of his death, resignation, incapacity to act, or 
removal from the county, or that the process was not personally served on the 
defendant, or on all the defendants, or in case of the death of some of the par- 
ties, or where the docket or record of such judgment is or shall have been lost or 
destroyed. 

Civ. P. '22, § 310 ; Civ. P. '12, § 116 ; Civ. P. '02, § 91 ; 1870, XIV, § 94 ; 1912, XXVII, 
536. 



§ 347 Code op Civil Procedure 102 

§ 347. Feigned Issues not Allowed. — Feigned issues shall not be allowed, 
and, instead thereof, or when a question of fact, not put in issue by the plead- 
ings, is to be tried by a jury, an order for the trial may be made stating dis- 
tinctly and plainly the question of fact to be tried ; and such order shall be the 
only authority necessary for a trial. 

Civ. P. '22, § 311 ; Civ. P. '12, § 117 ; Civ. P. '02, § 92 ; 1870, XIV, § 95. 



TITLE 2 
Time of Commencing Civil Actions 

Chapter 1. General Provisions, § 348. 

Chapter 2. Actions for the Recovery of Real Property, § 363. 

Chapter 3. Actions Other Than For Recovery of Realty, § 378. 



CHAPTER 1 
General Provisions 

348. Time for Commencing Actions. 3.54. Reversal of Judgment. 

349. When Action Commenced. 355. Injunction Staying Action. 

350. Defendant out of State. 358-9. When Title not Applicable. 
351-356-7. Persons Under Disability. 360. New Promises. 

352. Death of Person Entitled. 361. Liability of Partners after Dissolution. 

353. Aliens. 362. Part Payment or Acknowledgment. 

§ 348. Time for Commencing Actions, etc. — Civil actions can only be com- 
menced within the periods prescribed in this Title, after the cause of action shall 
have accrued, except where, in special cases, a different limitation is prescribed 
by Statute: But the objection that the action was not commenced within the 
time limited can only be taken by answer. 

Civ. P. '22, § 313 ; Civ. P. '12, § 119 ; Civ. P. '02, § 94 ; 1870, XIV, § 97. 

§ 349. When Action Deemed Commenced. — An action is commenced as to 
each defendant when the summons is served on him, or on a codef endant, who is 
a joint contractor, or otherwise united in interest with him. An attempt to com- 
mence an action is deemed equivalent to the commencement thereof, within the 
meaning of this Title, when the summons is delivered with the intent that it shall 
be actually served, to the Sheriff or other officer of the county in which the de- 
fendant or one of them usually or last resided; or, if a corporation be defen- 
dant, to the Sheriff or other officer of the county in which such corporation was 
established by law, or where its general business was transacted, or where it 
kept an office for the transaction of business. 

Civ. P. '22, § 340 ; Civ. P. '12, § 146 ; Civ. P. '02, § 120 ; 1870, XIV, § 122. 

§ 350. Exemption — Defendant out of State. — If, when the cause of action 
.shall accrue against any person, he shall be out of the State, such ad ion may be 
commenced within the terms herein respectively limited after the return of such 
person into this State ; and, if, after such cause of action shall have accrued, such 
person shall depart from and reside out of this State, or remain continuously 
absent therefrom for the space of one year or more, the time of his absence shall 
not be deemed or taken as any part of the time limited for the commencement of 
such action. 

Civ. P. '22, § 341 ; Civ. P. '12, § 147 ; Civ. P. '02, § 121 ; 1870, XIV, § 123. 

§ 351. Exemption as to Persons under Disability. — If a person entitled to 
bring an action mentioned in Chapter 3 of this Title, except for a penalty or 



103 Code of Civil Procedure § 352 

forfeiture, or against a Sheriff or other officer for an escape, be, at the time the 
cause of action accrued, either: (1) Within the age of twenty-one years; or (2) 
insane: or (3) imprisoned on a criminal or civil charge, or in execution under 
the sentence of a Criminal Court for a less term than his natural life — the time 
of such disability is not a part of the time limited for the commencement of the 
action; except that the period within which the action must be brought cannot 
be extended more than five years by any such disability, except infancy ; nor can 
it be so extended, in any case, longer than one year after the disability ceases : 
Provided, That the omission of the words, "or insane," herein since the adop- 
tion of the Code of Laws of South Carolina, 1912, shall not prejudice the interest 
of any insane person. 

Civ. P. '22, § 342 ; Civ. P. '12, § 148 ; Civ. P. '02, § 122 ; 1870, XIV, § 124 ; 1918, XXX, 
715. 

§ 352. Death of Person Entitled before Limitation Expires. — If a person 
entitled to bring an action die before the expiration of the time limited for the 
commencement thereof, and the cause of action survive, an action may be com- 
menced by his representatives, after the expiration of that time and within one 
year from his death. If a person against whom an action may be brought die 
before the expiration of the time limited for the commencement thereof, and the 
cause of action survive, an action may be commenced against his executors or 
administrators after the expiration of that time, and within one year after the 
issuing of letters testamentary or of administration. 

Civ. P. '22, § 343; Civ. P. '12, § 149; Civ. P. '02, § 123; 1870, XIV, § 125. 

§ 353. Suits by Aliens. — When a person shall be an alien subject, or citizen 
of a country at war with the United States, the time of the continuance of the 
war shall not be a part of the period limited for the commencement of the action. 

Civ. P. '22, § 344 ; Civ. P. '12, § 150 ; Civ. P. '02, § 124 ; 1870, XIV, § 126. 

§ 354. Where Judgment Reversed. — If an action shall be commenced with- 
in the time prescribed therefor, and a judgment therein be reversed on appeal, 
the plaintiff, or, if he die and the cause of action survive, his heirs or repre- 
sentatives may commence a new action within one year after the reversal. 

Civ. P. '22, § 345 ; Civ. P. '12, § 151 ; Civ. P. '02, § 125 ; 1870, XIV, § 127. 

§ 355. Stay of Action by Injunction, etc. — When the commencement of an 
action shall be stayed by injunction or statutory prohibition, the time of the 
continuance of the injunction or prohibition shall not be part of the time limited 
for the commencement of the action. 

Civ. P. '22, § 346 ; Civ. P. '12, § 152 ; Civ. P. '02, § 126 ; 1870, XIV, § 128. 

§ 356. Disability Must Exist When Right Accrued. — No person shall avail 
himself of a disability, unless it existed when his right of action accrued. 
Civ. P. '22, § 347 ; Civ. P. '12, § 153 ; Civ. P. '02, § 127 ; 1870, XIV, § 129. 

§ 357. Two or More Disabilities. — Where two or more disabilities shall 
coexist at the time the right of action accrues, the limitation shall not attach 
until they all be removed. 

Civ. P. '22, § 348 ; Civ. P. '12, § 154 ; Civ. P. '02, § 128 ; 1S70, XIV, § 130. 

§ 358. This Title— When not to Apply.— This Title shall not affect actions 
to enforce the payment of bills, notes, or other evidences of debt, issued by 
moneyed corporations, or issued or put in circulation as money. 

Civ. P. '22, § 349 ; Civ. P. '12, § 155 ; Civ. P. '02, § 129 ; 1870, XIV, § 131. 

§ 359. Same. — This Title shall not affect action against directors or stock- 
holders of a moneyed corporation, or banking associations, to recover a penalty 



§ 360 Code op Civil Procedure 104 

or forfeiture imposed, or to enforce a liability created by law; but such actions 
must be brought within six years after the discovery by the aggrieved party of 
the facts upon which the penalty or forfeiture attached, or the liability was cre- 
ated, unless otherwise provided in the law under which such corporation is or- 
ganized. 

Civ. P. '22, § 350 ; Civ. P. '12, § 156 ; Civ. P. '02, § 130 ; 1870, XIV, § 132. 

§ 360. New Promises Must Be in Writing. — No acknowledgment or prom- 
ise shall be sufficient evidence of a new or continuing contract, whereby to take 
the case out of the operation of this Title, unless the same be contained in some 
writing signed by the party to be charged thereby ; but payment of any part of 
principal or interest is equivalent to a promise in writing. 

Civ. P. '22, § 351 ; Civ. P. '12, § 157 ; Civ. P. '02, § 131, 1870, XIV, § 133. 

§ 361. Partners only Liable for Their Own Acts After Dissolution of Part- 
nership. — No acknowledgment, payment or part payment or renewal of any 
debt or obligation of a firm, made after notice of the dissolution of the co- 
partnership, shall have any force or effect to bind any member of the firm or 
continue his liability to pay said copartnership debt, other than the person by 
whom such acknowledgment, payment or part payment or renewal shall be 
made, or in any wise affect their right to plead the Statute of Limitations or 
the presumption of payment from lapse of time. 

Civ. P. '22, § 352 ; Civ. P. '12, § 158 ; Civ. P. '02, § 131a ; 1900, XXIII, 349. 

§ 362. Suits on Causes Saved from Bar of Statute by Part Payment, Etc. — 

All actions upon causes of action which would be barred by the Statute of 
Limitations but for part payment or a written acknowledgment, shall be 
brought on the original cause of action, and the part payment or written acknowl- 
edgment shall be evidence, to prevent the bar of the Statute of Limitations. 
Civ. P. '22, § 353 ; Civ. P. '12, § 159 ; Civ. P. '02, § 131b ; 1900, XXIII, 345. 



CHAPTER 2 
Actions for the Recovery of Real Property 

363. When State will not Sue. 368. Action after Entry. 

364. Grantee from State. 369. Possession. 

365. Limit for Action by State or Grantees. 370-4. Adverse Possession. 
366-7. When seizing Within Ten Years 375. Descent Cast. 

necessary. 376. Persons Under Disability. 

377. No Action after Forty Years. 

§ 363. When State WiU Not Sue. — The State will not sue any person for or 
in respect to any real property, or the issues or profits thereof, by reason of the 
right or title of the State to the same unless : 

(1) Such right or title shall have accrued within twenty years before any 
action or other proceeding for the same shall be commenced ; or unless 

(2) The State, or those from whom it claims, shall have received the rents 
and profits of such real property, or of some part thereof, within the space of 
twenty years. 

Civ. P. '22, § 314 ; Civ. P. '12, § 120 ; Civ. P. '02, § 95 ; 1870, XIV, § 98 ; 1873, XV: 496. 

§ 364. When Action Cannot Be Brought by Grantee from State. — No ac- 
tion shall he brought for or in respect to real property by any person claiming 
by virtue of letters patent or grants from the State, unless the same might have 



105 Code op Civil Procedure § 365 

been commenced by the State as herein specified, in case such patent or grant 
had not been issued or made. 

Civ. P. '22, § 315 ; Civ. P. '12, § 121 ; Civ. P. '02, § 9G ; 1870, XIV, § 99. 

§ 365. When Action by State or their Grantees To Be Brought Within Ten 
Years. — When letters patent or grants of real property shall have been issued 
or made by the State, and the same shall be declared void by the determination 
of a competent Court, rendered upon an allegation of a fraudulent suggestion, 
or concealment, or forfeiture, or mistake, or ignorance of a material fact, or 
wrongful detaining, or defective title, in such case an action for the recovery 
of the premises so conveyed may be brought either by the State, or by any sub- 
sequent patentee or grantee of the premises, his heirs or assigns, within ten 
years after such determination was made, but not after that period. 

Civ. P. '22, § 316 ; Civ. P. '12, § 122 ; Civ. P. '02, § 97 ; 1870, XIV, § 100 ; 1873, XV, 496. 

§ 366. Seizin Within Ten Years — When Necessary — Plaintiff Limited to 
Two Actions. — (1) No action for the recovery of real property, or for the re- 
covery of the possession thereof, shall be maintained, unless it appear that the 
plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the 
premises in question within ten years before the commencement of such action: 
Provided, No action to recover possession of real property shall be brought 
against a party in possession under claim of title through a deed or deeds in 
which a defective renunciation of inheritance occurred, or in which no renunci- 
ation of inheritance was made where one should have been executed, where said 
right of action would not exist, except by reason of an ancestor's defective re- 
nunciation of inheritance or failure to execute a renunciation of inheritance. 

(2) Plaintiff Limited to Tv^o Actions for Kecovery of Keal Property. — 
The plaintiff in all actions for recovery of real property, or the recovery of the 
possession thereof, is hereby limited to two actions for the same, and no more : 
Provided, That the costs of the first action be first paid, and the second action 
he brought within two years from the rendition of the verdict or judgment m 
the first action, or from the granting of a nonsuit or discontinuance therein. 

Civ. P. '22, § 317 ; Civ. P. '12, § 123 ; Civ. P. '02, § 98 ; 1879, XXII, 76 ; 1913, XXVII, 36. 

§ 367. Seizin Within Ten Years — ^When Necessary in Action or Defense 
Founded on Title, etc. — No cause of action, or defense to an action, founded 
upon a title to real property, or to rents or services out of the same, shall he 
eft'ecfual, unless it appear that the person prosecuting the action or making the 
defense, or under whose title the action is prosecuted or the defense is made, 
or the ancestor, predecessor, or grantor of such person, was seized or possessed 
of the premises in question within ten years before the committing of the act 
in respect to which such action is prosecuted or defense made. 

Civ. P. '22. § 318 ; Civ. P. '12, § 121 ; Civ. P. '02, § 99 ; 1870, XIV, § 102 ; 1873, XV, 496. 

§ 368. Action after Entry, or Right of Entry. — No entry upon real estate 
shall be deemed sufficient or valid as a claim, unless an action be commenced 
thereupon within one year after the making of such entry, and within ten years 
from the time M'hen the right to make such entry descended or accrued. 

Civ. P. '22, § 319; Civ. P. '12, § 125; Civ. P. '02, § 100; 1870, XIV, § 103; 1873, XV, 496. 

§ 369. Possession — ^When Presumed — Occupation When Deemed Under 
Legal Title. — In every action for the recovery of real property, or the posses- 
sion thereof, the person establishing a legal title to the premises shall be pre- 
sumed to have been possessed thereof within the time required by law: and the 
occupation of such premises by any other person shall be deemed to have been 



§ 370 Code of Civil Procedure 106 

under and in subordination to the legal title, unless it appear that such premises 
have been held and possessed adversely to such legal title for ten years before 
the commencement of such action. 

Civ. P. '22, § 320 ; Civ. P. '12, § 126 ; Civ. P. '02, § 101 ; 1870, XIV, § 104 ; 1873, XV, 496. 

§ 370. Occupation Under Written Instrument, Etc. — ^Whenever it shall ap- 
pear that the occupant, or those under whom he claims, entered into the pos- 
session of premises under claim of title, exclusive of any other right, founding 
such claim upon a written instrument, as being a conveyance of the premises 
in question, or upon the decree or judgment of a competent Court, and that 
there has been a continued occupation and possession of the premises included 
in such instrument, decree, or judgment, or of some part of such premises 
under such claim for ten years, the premises so included shall be deemed to 
have been held adversely; except that where the premises so included consist 
of a tract divided into lots, the possession of one lot shall not be deemed a pos- 
session of any other lot of the same tract. 

Civ. P. '22, § 321 ; Civ. P. '12, § 127 ; Civ. P. '02, § 102 ; 1870, XIV, § 105 ; 1873, XV, 
496. 

§ 371. Adverse Possession Under Written Instrument, Etc. — For the pur- 
pose of constituting an adverse possession, by any person claiming a title found- 
ed upon a written instrument or a judgment or decree, land shall be deemed 
to have been possessed and occupied in the following cases : 

(1) Where it has been iisually cultivated or improved. 

(2) Where it has been protected by a substantial enclosure. 

(3) Where, although not enclosed, it has been used for the supply of fuel or of 
fencing timber, for the purposes of husbandry, or the ordinary use of the occu- 
pant. 

(4) Where a known farm or a single lot has been partly improved, the portion 
of such farm or lot that may have been left not cleared or not enclosed, accord- 
ing to the usual course and custom of the adjoining country, shall be deemed 
to have been occupied for the same length of time as the part improved and culti- 
vated. 

Civ. P. '22, § 322 ; Civ. P. '12, § 128 ; Civ. P. '02, § 103 ; 1870, XIV, § 106. 

§ 372. Premises Actually Occupied Held Adversely. — ^Where it shall appear 
that there has been an actual continued occupation of premises, under a claim 
of title, exclusive of any other right, but not founded upon a written instru- 
ment or a judgment or decree, the premises so actually occupied, and no other, 
shall be deemed to have been held adversely. 

Civ. P. '22, § 323 ; Civ. P. '12, § 129 ; Civ. P. '02, § 104 ; 1870, XIV, § 107. 

§ 373. Adverse Possession Under Claim of Title Not Written. — For the pur- 
pose of constituting an adverse possession by a person claiming title not found- 
ed upon a written instrument or a judgment or decree, land shall be deemed 
to have been possessed in the following cases only : 

(1) Where it has been protected by a substantial enclosure. 

(2) Where it has been usually cultivated or improved. 

Civ. P. '22, § 324 ; Civ. P. '12, § 130 ; Civ. P. '02, § 105 ; 1870, XIV, § 108. 

§ 374. Relation of Landlord and Tenant, as Affecting Adverse Possession. 

— Whenever the relation of landlord and tenant shall have existed between any 
persons, the possession of the tenant shall be deemed the possession of the land- 
lord until the expiration of ten years from the termination of the tenancy; or, 
where there has been no written lease, until the expiration of ten years from the 
time of refusal to pay rent, notwithstanding that such tenant may have ac- 



107 Code of Civil Procedure § 375 

quired another title, or may have claimed to hold adversely to his landlord. But 

such presumptions shall not be made after the periods herein limited. 

Civ. P. '22, § 325 ; Civ. P. '12, § 131 ; Civ. P. '02, § 106 ; 1870, XIV, § 109 ; 1873, XV, 
496. 

§ 375. Descent Cast Effect of. — The right of a person to the possession of 
any real property shall not be impaired or affected by a descent being cast in 
consequence of the death of ^ person in possession of such property. 

Civ. P. '22, § 326 ; Civ. P. '12, § 132 ; Civ. P. '02, § 107 ; 1879, XIV, § 110. 

§ 376. Persons Under Disability. — If a person entitled to commence any 
action for the recovery of real property, or make an entry or defense founded 
on the title to real property, or to rents or services out of the same, be, at the 
time such title shall first descend or accrue, either : 

(1) Within the age of twenty-one years; or, 

(2) Insane ; or, 

(3) Imprisoned on a criminal or civil charge, or in execution upon conviction 
of a criminal offense for a term less than for life — 

The time during which such disability shall continue, shall not be deemed 
any portion of the time in this Chapter limited for the commencement of such 
action or the making of such entry or defense; but such action may be com- 
menced, or entry or defense made, after the period of ten years, and within ten 
years after the disability shall cease, or after the death of the person entitled 
who shall die under such disabilitj^; but such action shall not be commenced, 
or entry or defense made, after that period. 

Civ. P. '22, § 327; Civ. P. '12, § 133; Civ. P. '02, § 108; 1870, XIV, § 111; 1873, 
XV, 496. 

§ 377. After Forty Years, No Action Whatever AUowed. — No action shall 
be commenced in any case for the recovery of real property, or for any interest 
therein; against a person in possession under claim of title 'by virtue of a writ- 
ten instrument, unless the person claiming, his ancestor or grantor, was actually 
in the possession of the same or a part thereof, within forty years from the 
commencement of such action. And the possession of a defendant, sole or con- 
nected, pursuant to the provisions of this Section, shall be deemed valid against 
the world after the lapse of said period. 

Civ. P. '22, § 328 ; Civ. P. '12, § 134 ; Civ. P. '02, 109 ; 1873, XV, 496. 



CHAPTER 3 

Actions Other Than for Recovery of Realty 

378. Limitation Prescribed. 383. One Year. 

379. Tvi^enty Years. 384. Action upon Open Account. 

380. Six Years. 385. Action for Penalties. 

381. Three Years. 386. Action for Other Relief. 

382. Two Years. 387. Contractual Limitations. 

388. Actions by State. 

§ 378. Limitation Prescribed. — The periods prescribed in Section 348 for 
the commencement of actions other than for the recovery of real property shall 
be as follows : 

Civ. P. '22, § 329 ; Civ. P. '12, § 135 ; Civ. P. '02, § 110 ; 1870, XIV, § 112. 

§ 379. Twenty Years. — Within twenty years: 

(1) An action upon a judgment or decree of any Court of the United States, 
or any State or Territory within the United States. 

1870, XIV, § 113. 



§ 380 Code of Civil Peocedure 108 

(2) An action upon a bond, or other contract in writing, secured by a mort- 
gage of real property; an action upon a sealed instrument other than a sealed 
note and personal bond for the payment of money only, whereof the period of 
limitation shall be the same as prescribed in the following Section. 

Civ. P. '22, § 330 ; Civ. P. '12, § 136 ; Civ. P. '02, § 111 ; 1880, XVII, 415. 

§ 380. Six Years. — Within six years: 

1870, XIV, § 114. 

(1) An action upon a contract, obligation, or liability, express or implied, 
excepting those provided for in Section 2 of this Chapter, 

(2) An action upon a liability created by Statute, other than a penalty or 
forfeiture. 

(3) An action for trespass upon or damage to real property. 

(4) An action for taking, detaining, or injuring any goods or chattels; in- 
cluding action for the specific recovery of personal property. 

(5) An action for criminal conversation, or for any other injury to the person 
or rights of another, not arising on contract, and not hereinafter enumerated. 

(6) Any action for relief on the ground of fraud, in cases which, heretofore, 
were solely cognizable by the Court of Chancery, the cause of action in such 
case not to be deemed to have accrued until the discovery by the aggrieved party 
of the facts constituting the fraud. 

(7) Actions may be brought in any of the Courts of this State properly hav- 
ing jurisdiction thereof on any policies of insurance, either fire or life, whereby 
any person or property, resident or situate in this State, may be or may have 
been insured, or for or on account of any loss arising thereunder, within six 
years from the date of such loss, or from the accrual of the cause of action under 
said policy, any clause or condition in the said policies or limitations therein 
contained to the contrary notwithstanding. 

Civ. P. '22, § 331 ; Civ. P. '12, § 137 ; Civ. P. '02, § 112 ; 1891, XX, 1042. 
§ 381. Three Years. — Within three years: 
1870, XIV, § 115. 

(1) An action against a Sheriff, Coroner or Constable, upon a liability in- 
curred by the doing of an act in his official capacity, and in virtue of his office, 
or by the omission of an official duty, including the non-payment of money col- 
lected upon an execution. But this Section shall not apply to an action for an 
escape. 

(2) An action upon a Statute, for a penalty or forfeiture, where the action 
is given to the party aggrieved, or to such party and the State, except where the 
Statute imposing it prescribes a different limitation. 

Civ. P. '22, § 332 ; Civ. P. '12, § 138 ; Civ. P. '02, § 113. 
§ 382. Two Years. — Within two years: 

1870, XIV, § 116. 

(1) An action for libel, slander, assault, battery, or false imprisonment. 

(2) An action upon a Statute, for a forfeiture or penalty to the State. 
Civ. P. '22, § 333 ; Civ. P. '12, § 139 ; Civ. P. '02, § 114. 

§ 383. One Year. — Within one year : 
1870, XIV, § 117. 

An action against a Sheriff or other officer for the escape of a prisoner ar- 
rested or imprisoned on civil process. 

Civ. P. '22, § 334 ; Civ. P. '12, § 140 ; Civ. P. '02, § 115. 



109 Code of Civil Procedure § 384 

§ 384. Action upon Current Account. — In an action brought to recover a 
balance due upon a mutual, open, and current account, where there have been 
reciprocal demands between the parties, the cause of action shall be deemed to 
have accrued from the time of the last item proved in the account on either side. 

Civ. P. '22, § 335 ; Civ. P. '12, § 141 ; Civ. P. '02, § 116 ; 1870, XIV, § 118. 

§ 385. Action for Penalties. — An action upon a Statute, for a penalty or 
forfeiture given, in whole or in part, to any person who will prosecute for the 
same, must be commenced within one year after the commission of the offense; 
and, if the action be not commenced within the year by a private party, it may 
be commenced within two years thereafter, in behalf of the State, by the Attorney 
General, or the Solicitor of the Circuit where the offense was committed, unless 
a different limitation be prescribed in the Statute under which the action is 
brought. 

Civ. P. '22, § 336 ; Civ. P. '12, § 142 ; Civ. P. '02, § 117 ; 1870, XIV, § 119. 

§ 386. Action for Other Relief. — An action for relief not hereinbefore pro- 
vided for, must be commenced within ten years after the cause of action shall 
have accrued. 

Civ. P. '22, § 337; Civ. P. '12, § 143; Civ. P. '02, § 118, 1870, XIV, § 120. 

§ 387. Clause in Contract not in Conformity to Statute of Limitations De- 
clared Void. — No clause, provision or agreement in any contract of whatso- 
ever nature, verbal or written, whereby it is agreed that either party shall be 
barred from bringing suit upon any cause of action arising out of said contract 
if not brought within a period less than the time prescribed by the Statute of 
Limitations, for similar causes of action, shall bar such action, but the same may 
be brought notwithstanding such clause, provision or agreement if brought with- 
in the time prescribed by the Statute of Limitations in reference to like causes 
of action. 

Civ. P. '22, § 338 ; Civ. P. '12, § 144 ; 1911, XXVII, 130. 

§ 388. Actions by State. — The limitations prescribed by this Chapter shall 
apply to actions brought in the name of the State, or for its benefit, in the same 
manner as to actions by private parties. 

Civ. P. '22, § 339 ; Civ. P. '12, § 145 ; Civ. P. '02, § 119 ; 1870, XIV, § 121. 



TITLE 3 

Parties to Civil Actions 

Chapter 1. Parties to Civil Action Generally, § 389. 

Chapter 2. Wrongful Death Action and Survival of Actions, § 402. 



CHAPTER 1 
Parties to Civil Action Generally 

389. Real Party in Interest to Sue. 397. State as Defendant in Action Affect- 

390. Action by Assignee. ins Realty. 

391. Action by Representative. 398. One may Sue or Defend for Others. 

392. Action by and against Married Woman. 399. Action Against Parties to Bills and 
393-^. Infants and their Guardians. Notes. 

395. Party Plaintiff. 400. Abatement of Action. 

396. Party Defendant. 401. Interpleader. 

§ 389. Party in Interest to Sue — Action by Grantee of Land Held Ad- 
versely. — Every action must be prosecuted in the name of the real party in 



§ 390 Code of Civil Procedure 110 

interest, except as otherwise provided in Section 391, but this Section shall not 
be deemed to authorize the assignment of a thing in action not arising out of 
contract. But an action may be maintained by a grantee of land in the name 
of the grantor, or his or her heirs or legal representatives, when the grant or 
grants are void by reason of the actual possession of a person claiming under 
a title adverse to that of the grantor at the time of the delivery of the grant, 
and the plaintiff shall be allowed to prove the facts to bring the case within this 
provision. 

Civ. P. '22, § 354 ; Civ. P. '12, § 160 ; Civ. P. '02, § 132 ; 1870, XIV, § 134. 

§ 390. Assignment of Thing in Action. — In the case of an assignment of 
a thing in action, the action by the assignee shall be without prejudice to any 
set-off or other defense existing at the time of, or before notice of, the assignment ; 
but this Section shall not apply to a negotiable promissory note or bill of ex- 
change- transferred in good faith, and upon good consideration, before due. 

Civ. P. '22, § 355 ; Civ. P. '12, § 161 ; Civ. P. '02, § 133 ; XIV, § 135. 

§ 391. Actions by Executor, Trustee, Etc. — An executor or administrator, 
a trustee of an express trust, or a person expressly authorized by Statute, may 
sue, without joining with him the person for whose benefit the action is prose- 
cuted. A trustee of an express trust, within the meaning of this Section, shall 
be construed to include a person with whom, or in. whose name, a contract is made 
for the benefit of another. 

Civ. P. '22, § 356 ; Civ. P. '12, § 162 ; Civ. P. '02, § 134 ; 1870, XIV, § 136. 

§ 392. Action by and Against Married Woman. — A married woman may 
sue and be sued as if she were unmarried : Provided, That neither her husband 
nor his property shall be liable for any recovery against her in any such suit ; 
but judgment may be enforced by execution against her sole and separate estate 
in the same manner as if she were sole. When the action is between herself and 
her husband, she may likewise sue or be sued alone. 

Civ. P. '22, § 357 ; Civ. P. '12, § 163 ; Civ. P. '02, § 135 ; 1870, XIV, § 137 ; 1925, XXXIV, 
263. 

§ 393. Infants — Action by and Against. — ^When an infant is a party, he 
must appear by guardian, who may be appointed by the Court in which the 
action is prosecuted, or by a Judge thereof, or a Judge of Probate, Clerk of 
Court, or by a Master in those counties where the office of Master now or may 
hereafter exist. 

Civ. P. '22, § 358; Civ. P. '12, § 164; Civ. P. '02, § 136; 1870, XIV, § 138; 1870, 
XVII, 32; 1898, XXII, 688. 

§ 394. Guardian — How Appointed. — The guardian shall be appointed as 

follows : 

(1) When the infant is plaintiff, upon. the application of the infant, if he 
be of the age of fourteen years; if under that age, upon the application of his 
general or testamentary guardian, if he has any, or of a relative or friend of the 
infant ; if made by a relative or friend of an infant, notice thereof must first 
be given to such guardian, if he has one; if he has none, then to the person with 
whom such infant resides. 

(2) When the infant is defendant, upon the application of the infant, if he 
be of the age of fourteen years, and apply within twenty days after the service 
of the summons. If he be under the age of fourteen, or neglect so to apply, then 
upon application of any other party to the action, or of a relative or friend of 
the infant, after notice of such application being first given- to the general or 
testamentary guardian of such infant, if he has one within this State; if he 



Ill Code of Civil Procedure § 395 

has none, then to the infant himself, if over fourteen years of age, and within 
the State ; or, if under that age, and within the State, to the person with M^hom 
such infant resides. And in an action for the partition of real property, or for 
the foreclosure of a mortgage or other instrument, or any other case affecting real 
estate in which an infant has an interest, when an infant defendant resides out 
of the State or is temporarily absent therefrom, the plaintiff may apply to the 
Court in which the action is pending, or to a Judge, Clerk or Master thereof, 
and will be entitled to an order designating some suitable person to be the 
guardian of the infant defendant for the purpose of the action, unless the infant 
defendant, or some one in his behalf, within a number of days after the service 
of a copy of the order, which number of days shall be in the said order specified, 
shall procure to be appointed a guardian ad litem for the said infant ; and the 
Court or officer appointing shall give special directions in the order for the 
manner of the service thereof, which may be upon the infant. And in case the 
infant defendant, having an interest in the events of the action, shall reside in 
any State with which there shall not be a regular communication by mail, on 
such fact satisfactorily appearing to the Court, the Court may appoint a guar- 
dian ad litem for such absent infant party, for the purpose of protecting the 
right of such infant in said action, and on such guardian ad litem process, plead- 
ings and notices in the action may be served in the like manner as upon a party 
residing in the State. 

Civ. P. '22, § 359 ; Civ. P. '12, § 165 ; Civ. P. '02, § 137 ; 1870, XIV, § 139 ; 1912, XXVII. 
623. 

§ 395. Who May Be Plaintiffs. — All persons having an interest in the sub- 
ject of the action, and in obtaining the relief demanded, may be joined as plain- 
tiffs, except as otherwise provided in this Title. 

Civ. P. '22, § 360 ; Civ. P. '12, § 166 ; Civ. P. '02, § 138 ; 1870, XIV, § 140. 

§ 396, Who May Be Defendants. — Any person may be made a defendant 
who has or claims an interest in the controversy adverse to the plaintiff, or who 
is a necessary party to a complete determination or settlement of the questions 
involved therein, and in an action to recover the possession of real estate, the 
landlord and tenant thereof may be joined as defendants; and any person 
claiming title or a right of possession to real estate may be made parties plain- 
tiff or defendant, as the case may require, to any such actions. 

Civ. P. '22, § 361 ; Civ. P. '12, § 167 ; Civ. P. '02, § 139 ; 1870, XIV, § 141. 

§ 397. State May Be Defendant in Action Affecting^ Title to Real Estate- 
Service of Process.— In any action or suit at law affecting the title to real estate 
and when it appears that the State of South Carolina has or claims a judgment 
-lien upon said real estate, the State of South Carolina may be made a party de- 
fendant in such action or suit at law : Provided, No money demand is made in 
such suit or action at law against the State of South Carolina. Service of the 
summons and complaint in such action or suit at law upon the Attorney General 
■of the State of South Carolina will be sufficient service upon the State of South 
-Carolina. - 

1926, XXXIV, 963. 

§ 398. One or More May Sue or Defend for AU.— Of the parties to the ac- 
tion, those who are united in interest must be joined as plaintiffs or defendants ; 
but if the consent of any one who should have been joined as plaintiff cannot 
be obtained, he may be made a defendant, the reason thereof being stated in 
th*i complaint; and when the question is one of a common or general interest 
of many persons, or when the parties are very numerous and it may be imprac- 



§ 399 Code of Civil Procedure 112 

ticable to bring them all before the Court, one or more may sue or defend for 
the benefit of the whole. 

Civ. P. '22, § 362 ; Civ. P. '12, § 168 ; Civ. P. '02, § 140 ; 1870, XIV, § 142. 

§ 399. One Action Against the Different Parties to Bills and Notes. — Per- 
sons severally liable upon the same obligation or instrument, including the par- 
ties to bills of exchange and promissory notes may all, or any of them, be in- 
cluded in the same action, at the option of the plaintiff. 

Civ. P. '22, § 363 ', Civ. P. '12, § 169 ; Civ. P. '02, § 141 ; 1870, XIV, § 143. 

§ 400. Action — ^When Not To Abate. — No action shall abate by the death, 
marriage, or other disability of a party, or by the transfer of any interest therein, 
if the cause of action survive or continue. In case of death, marriage, or other 
disability of a party, the Court, on motion, at any time within one year there- 
after, or afterwards, on a supplemental complaint, may allow the action to be 
continued by or against his representative or successor in interest. In case of 
any other transfer of interest, the action shall be continued in the name of the 
original party, or the Court may allow the person to whom the transfer is made 
to be substituted in the action. 

After a verdict shall be rendered in any action for a wrong, such action shall 
not abate by the death of any party, but the case shall proceed thereafter in the 
same manner as in cases where the cause of action now survives by law. 

At any time after the death, marriage or other disability of the party plain- 
tiff, the Court in which action is pending, upon notice to such person as it may 
direct, and upon application of any person aggrieved, may, in its discretion, 
order that the action be deemed abated, unless the same be continued by the 
proper parties, within a time to be fixed by the Court, not less than six months 
nor exceeding one year from the granting of the order. 

Civ. P. '22, § 364 ; Civ. P. '12, § 170 ; Civ. P. '02, § 142 ; 1870, XIV, § 144. 

§ 401. Court To Decide Controversy, Etc — ^Interpleader. — The Court may 
determine any controversy between the parties before it, when it can be done 
without prejudice to the rights of others, or by saving their rights ; but when a 
complete determination of the controversy cannot be had without the presence 
of other parties, the Court must cause them to be brought in. And when, in an 
action for the recovery of real or personal property, a person not a party to 
the action, but having an interest in the subject thereof, makes application to 
the Court to be made a party, it may order him to be brought in by the proper 
amendment. 

A defendant against whom an action is pending upon a contract, or for 
specific, real, or personal property, may, at any time before answer, upon affi- 
davit that a person not a party to the action, and without collusion by him, 
makes against him a demand for the same debt or property, upon due notice 
to such person and the adverse party, apply to the Court for an order to sub- 
stitute such person in his place, and discharge him from liability to either party, 
on his depositing in Court the amount of the debt, or delivering the property, 
or its value, to such person as the Court may direct ; and the Court may, in its 
discretion, make the order. 

Civ. P. '22, § 365 ; Civ. P. '12, § 171 ; Civ. P. '02, § 143 ; 1870, XIV, § 145. 



113 Code of Civil Procedure § 402 

CHAPTER 2 

Wrongful Death Actions and Survival of Actions 

402. Evidence of Appointment of Personal 408. Execution by Personal Representative. 
Representatives. 409. Action Against one of Several Repre- 

403. Action for Wrongful Death. sentatives. 

404. Beneficiaries and Damages. 410. When Action may be Commenced 
405-6. Limitation of Death Actions. Against Representative. 

407. Action Against Trespasser. . 411. Survival of Action. 

§ 402. Copies of Orders by Probate Judge Evidence of Appointment of 

Executors or Administrators. — It shall be the duty of the Judge of Probate, 

on application by the executor or administrator of any deceased person, to whom 

letters testamentary or of administration have been respectively granted, to 

furnish a true copy of such order as he may make, concerning the probate of 

the will, or granting of administration, certified under his hand, which shall 

be sufficient evidence of the appointment of such executor or administrator in 

any Court in this State. 

Civ. P. '22, § 366 ; Civ. P. '12, § 3954 ; Civ. P. '02, § 2850 ; G. S. 2182 ; R. S. 2314 ; 1789, 
V, 109; 1839, XI, 62. 

§ 403. Civil Action for Wrongful Acts Causing Death. — Whenever the 
death of a person shall be caused by the wrongful act, neglect, or default of an- 
other, and the act, neglect, or default is such as would, if death had not ensued, 
have entitled the party injured to maintain an action and recover damages in 
respect thereof, then, and in every such case, the person or corporation who 
would have been liable, if death had not ensued, shall be liable to an action for 
damages, notwithstanding the death of the person injured, although the death 
shall have been caused under such circumstances as make the killing in law a 
felony. 

Civ. P. '22, § 367 ; Civ. '12, § 3955 ; Civ. '02, § 2851 ; G. S. 2183 ; R. S. 2315 ; 1859, XII, 825. 

§ 404. Beneficiaries of Action for Wrongful Death — Damages Recoverable 
— Distribution. — Every such action shall be for the benefit of the wife or hus- 
band and child, or children, of the person whose death shall have been so caused ; 
and if there be no such wife, or husband, or child, or children, then for the bene- 
fit of the parent or parents ; and if there be none such, then for the benefit of the 
heirs at law or the distributees of the person whose death shall have been 
caused and shall be brought by or in the name of the executor or administrator 
of such person; and in every such action the jury may give sucTi damages, m- 
cluding exemplary damages where such wrongful act, neglect or default was the 
result of recklessness, wilfulness or malice, as they may think proportioned to 
the injury resulting from such death to the parties respectively, for whom and 
for whose benefit such action shall be brought. And the amount so recovered 
shall be divided among the beforementioned parties, in such shares as they 
would have been entitled to if the deceased had died intestate and the amount 
recovered had been personal assets of his or her estate. 

Civ. P. '22, § 368 ; Civ. '12, § 3956 ; Civ. '02, § 2852 ; G. S. 2184 ; R. S. 2316 ; 1859, XII, 
825 ; 1898, XXII, 788 ; 1901, XXIII, 743 ; 1902, XXIII, 1071. 

§ 405. Limitation of Actions for Wrongful Death — Liability for Costs. — 

All such actions must be brought within six years from the death of such per- 
son, and the executor or administrator, plaintiff in the action, shall be liable 
to costs in case there be a verdict for the defendant, or nonsuit or discontinuance, 
out of the goods, chattels and lands of the testator or intestate, if any. 
Civ. P. '22, § 369 ; Civ. '12, § 3957 ; Civ. '02, § 2853 ; 1903, XXIV, 96. 



§ 406 Code of Civil Pkoceduke 114 

§ 406. Exception to Limitation of Actions for Wrongful Death. — The pro- 
visions of the three preceding Sections of this Chapter shall not apply to any 
case where the person injured has, for such injury, brought action, which has 
proceeded to trial and final judgment before his or her death. 

Civ. P. '22, § 370 ; Civ. '12, § 3958 ; Civ. '02, § 2854 ; G. S. 2186 ; R. S. 2318 ; 1859, XII, 825. 

§ 407. Actions Against Trespassers. — Executors in cases of trespass done 
to their testators, as of the goods and chattels of the same testators carried away 
in their life, shall have an action against the trespassers, and recover their dam- 
ages in like manner as thej-, whose executors they are, should have had if they 
were in life. 

Civ. P. '22, § 371 ; Civ. '12, § 3959 ; Civ. '02, § 2855 ; G. S. 2187 ; R. S. 2319 ; 4 Ed. 3, c. 7 ; 
1712, II, 425. 

§ 408. Executions on Judgments Held by Executors or Administrators De 

Bonis Non. — Where any judgment after a verdict shall be had by or in the 

name of any executor or administrator, an administrator de ionis non may take 

out execution upon such judgment. 

Civ. P. '22, § 372 ; Civ. '12, § 3960 ; Civ. '02, § 2856 ; G. S. 2188 ; R. S. 2320 ; 17 C. 2, c. 8 : 
1712, II, .521. 

§ 409. Actions Against Executors When One or More Are Out of State. — 

In cases where there are two or more executors or administrators to any estate, 
and any one or more of them has withdrawn, or shall withdraw, or reside out 
of the State, it shall and may be lawful for any creditor or person having right 
or cause of action against such estate to commence his action against all the 
executors or administrators, naming and setting forth therein the executor or 
administrator, one or more, who is or are out of the State; and the summons 
being served in the usual form upon those who are within the State, the suit 
shall be deemed to be good and effectual in law, to all intents and purposes : 
saving only that the judgment in such cases shall not extend to work any devas- 
tavit upon the person or persons so absent, or to affect him, her or them in their 
private right. 

Civ. P. '22, § 373; Civ. '12, § 8961; Civ. '02, § 2857; G. S. 2189; R. S. 2321 ; 1793, 
YII, 282. 

§ 410. When Actions may be Commenced Against Executor or Adminis- 
trator. — No action shall be commenced against any executor or administrator 
for the recovery of the debts due by the testator or intestate, until twelve months 
after such testator's or intestate's death. 

Civ. P. '22, § 374 ; Civ. '12, § 3962 ; Civ. '02, § 2858 ; G. S. 2190 ; R. S. 2322 ; 1789, V, 112 ; 
1885, XIX, 158. 

§ 411. Survival of Right of Action. — Causes of action for and in respect 
to any and all injuries and trespasses to and upon real estate and any and all 
injuries to the person or to personal property, shall survive both to and against 
the personal or real representative (as the case may be) of the deceased per- 
sons, and the legal representatives of insolvent persons, and defunct or insolvent 
corporations, any law or rule to the contrary notwithstanding. 

Civ. P. '22, § 375 ; Civ. '12, § 3963 ; Civ. '02, § 2859 ; R. S. 2323 ; 1892, XXI, 18 ; 1905, 
XXIV, 945. 



115 Code of Civil Procedure § 412 

TITLE 4 
Place of Trial of Civil Actions 

412. Where Subject of Action Situated. 415-16. Actions Against Insurance Com- 

413. Where Cause of Action Arose. panies. 

414. Wliere Defendant Resides. 417. Removal of Action. 

418. Changing Place of Trial. 

§ 412. Actions to Be Tried Where Subject Matter Situated. — Actions for 
the following causes must be tried in the county in which the subject of the 
action, or some part thereof, is situated, subject to the power of the Court to 
change the ])lace of trial, in the cases as hereinafter provided : 

(1) For the recovery of real property, or of an estate or interest therein, 
or for the determination in any form of such right or interest, and for injuries 
to real property. 

(2) For the partition of real property. 

(3) For the foreclosure of a mortgage of real property. 

(4) For the recovery of personal property destrained for any cause: Pro- 
vided, That nothing in this Section contained shall be so construed as to prevent 
the hearing of any of the said actions by consent of the parties or their attorneys, 
and of the guardian ad litem of any infant party to said action, in a county 
other than that in which said action may have been brought and may be pending, 
or other than that in which the property is situated. 

Civ. P. '22, § 376 ; Civ. P. '12, § 172 ; Civ. P. '02, § 144 ; 1870, XIV, § 146 ; 1887, XIX, 
835 ; 1894, XXI, 793. 

§ 413. Actions to Be Tried Where Cause of Action Arose. — Actions for the 
following causes must be tried in the county where the cause, or some part there- 
of, arose, subject to the like power of the Court to change the place of trial: 

(1) For the recovery of a penalty or forfeiture imposed by Statute, except 
that, when it is imposed for an offense committed on a lake, river, or other 
stream of water, situated in two or more counties, the action may be brought 
in any county bordering on such lake, river, or stream, and opposite to the place 
where the offense was committed. 

(2) Against a public officer, or person specially appointed to execute his 
duties, for an act done by him in virtue of his office, or against a person who 
by his command or in his aid, shall do anything touching the duties of such 
officer. 

Civ. P. '22, § 377 ; Civ. P. '12, § 173 ; Civ. P. '02, § 145 ; 1870, XIV, § 147. 

§ 414. Actions to Be Tried in County Where Defendant Resides— Proviso. 

— In all other cases the action shall be tried in the county in which the defend- 
ant resides at the time of the commencement of the action ; and if there be more 
than one defendant, then the action may be tried in any county in which one 
or more of the defendants to such action resides at the time of the commence- 
ment of the action ; or if none of the parties shall reside in the State, the same 
may be tried in any county which the plaintiff shall designate in his complaint, 
subject, however, to the power of the Court to change the place of trial in the 
cases as provided by law : Provided, That any administrator or administratrix, 
heretofore or hereafter appointed by any Probate Court of this State, may be 
sued in the county where such administration has or shall be granted ; any exec- 
utor or executrix may likewise be sued in the county where the testator's will 
is proved or admitted to probate; and any guardian may likewise be sued in 
the county in which the letters of guardianship may be issued : Provided, That 



§ 415 Code of Civil Procedure 116 

nothing in this Section contained shall be so construed as to prevent the hearing 

of any of the said actions by consent of the parties or their attorneys and of 

the guardian ad litem of any infant party to said action, in a county other than 

that in which said action may have been brought and may be pending, or other 

than that in which the property is situated. 

Civ. P. '22, § 378 ; Civ. P. '12, § 174 ; Civ. P. '02, § 146 ; 1870, XIV, § 148 ; 1875, XV. 913 ; 
1898, XXII, 687 ; 1905, XXIV, 848. 

§ 415. Suits Against Insurance Companies May Be Brought in County 
Where Loss Occurs. — All suits brought against any and all fire, life, or other 
insurance companies doing business in this State, may be brought in the county 
where the loss occurs : Provided, however, That nothing herein contained shall 
be CO construed as to prevent the Court from changing the place of trial for 
any of the causes provided for in Section 418. 

Civ. P. '22, § 379 ; Civ. P. '12, § 175 ; 1906, XXV, 111. 

§ 416. Suits by Mutual Life and Fire Insurance Companies Against Mem- 
bers. — ^All suits instituted by mutual life insurance companies and mutual tire 
insurance companies heretofore formed in this State or hereafter formed in 
this State, against a member or former member of said companies, or any receiver 
of said companies against any member or former member of any such companies, 
shall be brought in the county in which such member resides. 

Civ. P. '22, § 380 ; 1912, XXVII, 776. 

§ 417. When Such Suit to Be Removed. — Wherever any suit or proceeding 
has been brought, either as an independent suit or an ancillary proceeding to a 
receivership suit, in any county other than the county where the member or 
former member resides, the Court where such proceeding is pending shall, upon 
motion of such member or former member sued, on affidavit showing that he 
resides in a different county, remove such suit or proceeding to the county where 
such member or former member resides for trial. 

Civ. P. '22, § 381 ; 1912, XXVII, 776. 

§ 418. Changing Place of Trial. — The Court may change the place of trial 
in the following cases : 

(1) When the county designated for that purpose in the complaint is not the 
proper county. 

(2) When there is reason to believe that an impartial trial cannot be had 
therein. 

(3) When the convenience of witnesses and the ends of justice would be 
promoted by the change. 

When the place of trial is changed, all other proceedings shall be had in the 
county to which the place of trial is changed, unless otherwise provided by the 
consent of the parties, in writing, duly filed, or order of the Court; and the 
papers shall be filed or transferred accordingly. 

Civ. P. '22, § 382 ; Civ. P. '12, § 176 ; Civ. P. '02, § 147 ; 1870, XIV, § 149 ; 1879, XVII, 14. 



TITLE 5 

Manner of Commencing Civil Actions 

Chapter 1. Summons and Service, § 419. 

Chapter 2. Notices, Filing and Service of Papers, § 434. 



117 Code of Civil Procedure § 419 

CHAPTER 1 
Summons and Service 

419. Commencement of Action. 427. Service by Publication on Corporation. 

420. Summons. 428. Service by Publication. 

421. Notice in Summons. 429. Sei'vice on Less than all Defendants. 

422. Complaint not Served with Summons. 430. When Service by Publication Complete. 

423. Unreasonable Defense. 431. Proof of ^Service. 

424. Lis Pendens. 432. When Jurisdiction Acquired. 
42&-6. Service of Summons. 433. Action Affecting State Obligation. 

§ 419. Actions — How Commenced. — Civil actions in the Courts of record 
of this State shall be commenced by service of a summons. 

Civ. P. '22, § 383 ; Civ. P. '12, § 177 ; Civ. P. '02, § 148 ; 1870, XIV, § 150. 

§ 420. Summons — Requisites of. — The summons shall be subscribed by the 
plaintiff or his attorney, and directed to the defendant, and shall require him 
to answer the complaint, and serve a copy of his answer on the person whose 
name is subscribed to the summons, at a place within the State, to be therein 
specified, in which there is a postof6.ee, within twenty days after the service of 
the summons, exclusive of the day of service. 

Civ. P. '22, § 384 ; Civ. P. '12, § 178 ; Civ. P. '02, § 149 ; 1870, XIV, § 151. 

§ 421. Notice To Be Inserted in Summons. — The plaintiff shall also insert in 
the summons a notice, in substance : That if the defendant shall fail to answer 
the complaint within twenty days after the service of the summons, the plaintiff 
will apply to the Court for the relief demanded in the complaint. 

Civ. P. '22, § 385 ; Civ. P. '12, § 179 ; Civ. P. '02, § 150 ; 1870, XIV, § 152. 

§ 422. Complaint Need not Be Served with Summons. — A copy of the com- 
plaint need not be served with the summons. In such case, the summons must 
state where the complaint is or will be filed, and if the defendant, within twenty 
days thereafter, causes notice of appearance to be given, and, in person or by 
attorney, demands, and in writing, a copy of the complaint, specifying the place 
within the State where it may be served, a copy thereof must, within twenty 
days thereafter, be served accordingly; and, after such service, the defendant 
has twenty days to answer; but only one copy need be served on the same at- 
torney. 

Civ. P. '22, § 386 ; Civ. P. '12, § 180 ; Civ. P. '02, § 151 ; 1870, XIV, § 153. 

§ 423. Defendant Unreasonably Defending. — In the case of a defendant 
against whom no personal claim is made, the plaintiff may deliver to such de- 
fendant, with the summons, a notice subscribed by the plaintiff or his attorney, 
setting forth the general object of the action, a brief description of the property 
affected by it, if it affects specific real or personal property, and that no personal 
claim is made against such defendant, in which case no copy of the complaint 
need be served on such defendant, unless, within the time for answering, he shall, 
in writing, demand the same. If a defendant, on whom such notice is served, 
unreasonably defend the action, he shall pay costs to the plaintiff. 

Civ. P. '22, § 387 ; Civ. P. '12, § 181 ; Civ. P. '02, § 152 ; 1870, XIV, § 154. 

§ 424. Notice of Lis Pendens. — In an action affecting the title to real prop- 
erty, the plaintiff twenty days before filing of the complaint, at the time of 
filing the complaint, or at any time afterwards, or whenever a warrant of at- 
tachment, under Chapter 2 of Title 7, Part 2, of this Code of Procedure, shall 
be issued, or at any time afterwards, the plaintiff, or a defendant, when he sets 
up an affirmative cause of action in his answer, and demands substantive re- 



§ 425 Code of Civil Procedure 118 

lief, at the time of filing his answer, or at any time afterwards, if the same be 
intended to affect real estate, may file with the Clerk of each county in which 
the property is situated, a notice of the pendency of the action, containing the 
names of the parties, the object of the action, and the description of the prop- 
erty in that county affected thereby ; and if the action be for the foreclosure of 
a mortgage, such notice must be filed twenty days before judgment, and must 
contain the date of the mortgage, the parties thereto, and the time and place of 
recording the same. From the time of filing only, shall the pendency of the 
action be constructive notice to a purchaser or encumbrancer of the property 
affected thereby; and every person whose conveyance or encumbrance is subse- 
quently executed or subsequently recorded shall be deemed a subsequent pur- 
chaser or encumbrancer, and shall be bound by all proceedings taken after the 
filing of such notice to the same extent as if he were made a party to the action. 
For the purposes of this Section, an action shall be deemed to be pending from 
the time of filing such notice : Provided, Jiowever, That such notice shall be of 
no avail, unless it shall be followed by the first publication of the summons, or 
an order therefor, or by the personal service thereof, on a defendant within 
sixty days after such filing. And the Court in which the said action was com- 
menced may, in its discretion, at any time after the action shall be settled, dis- 
continued, or abated, as is provided in Section 400, on application of any person 
aggrieved, and on good cause shown, and on such notice as shall be directed 
or approved by the Court, order the notice authorized by this Section to be 
cancelled of record by the Clerk of any county in whose office the same may 
haA^e been filed or recorded; and such cancellation shall be made by an en- 
dorsement to that effect on the margin of the record, which shall refer to the 
order, and for which the Clerk shall be entitled to a fee of twenty-five cents. 

Civ.' P. '22, § 388 ; Civ. P. '12, § 182 ; Civ. P. '02, § 153 ; 1870, XIV, § 155 ; 1930, XXXVI, 
1218. 

§ 425. Summons — By Whom Served — Fees for Service. — The summons 
may be served by the Sheriff of the county where the defendant may be found, 
or by any other person not a party to the action. The service shall be made, 
and the summons returned, with proof of the service, to the person whose name 
is subscribed thereto, with all reasonable diligence. The person subscribing the 
summons may, at his option, by an endorsement on the summons, fix a time for 
the service thereof, and the service shall then be made accordingly : Provided, 
That no costs shall be taxed to any person for the service of any summons, com- 
plaint, answer, demurrer, subpoena, or other legal process issuing out of the 
Courts of Common Pleas and Courts of Probate, not made by the Sheriff of the 
county where such process is served, or his legally constituted deputies. 

Civ. P. '22, § 389 ; Civ. P. '12, § 183 ; Civ. P. '02, § 154 ; 1870, XIV, 156 ; 1874, XV, 640. 

§426. Summons — How Served. — The summons shall be served by deliver- 
ing a copy thereof as follows : 

1870, XIV, § 157. 

(1) If the suit be against a corporation, to the President or other head of 
the corporation. Secretary, Cashier, Treasurer, a Director or agent thereof. 
Service upon any person occupying an office or room in any railway station, 
and attending to and transacting therein any business of any railroad, shall be 
deemed service upon the corporation under the charter of which such railroad 
is authorized by law; and such person shall be deemed the agent of said cor- 
poration, notwithstanding he may claim to be the agent of any other person 
or corporation claiming to operate said railroad by virtue of any lease, contract 
or agreement. 



119 Code of Civil Procedure § 427 

Such service can be made in respect to a foreign corporation only when it 
has property within the State, or the cause of action arose therein, or where 
such service shall be made in this State personally upon the President, Cashier, 
Treasurer, Attorney or Secretary, or any agent thereof. Provided, further, That 
in the case of domestic corporations service as affected under the terms of this 
Section shall be effective and confer jurisdiction over any domestic corporation 
in any county where such domestic corporation shall own property and trans- 
act business regardless of whether or not such domestic corporation maintains 
an office or has agents in that county. 

(2) If against a minor under the age of fourteen years, to such minor per- 
sonally, and also to his father, mother, or guardian ; or, if there be none within 
the State, then to any person having the care and control of such minor, or 
with whom he shall reside, or in whose service he shall be employed. 

(3) If against a person judicially declared to be of unsound mind, or incap- 
able of conducting his own affairs in consequence of habitual drunkenness, and 
for whom a committee or guardian has been appointed, to such committee or 
guardian, and to the defendant personally. 

(4) In all other cases to the defendant personally, or to any person of dis- 
cretion residing at the residence or employed at the place of business of said 
defendant. 

Civ. P. '22. § 390 ; Civ. P. '12 ; § 184 ; Civ. P. '02, § 155 ; 1873, XV, 497 ; 1882, XVIII, 25fi ; 
1892, XXI, 104; 1927, XXXV, 292. 

§ 427. Service of Process of Siunmoiis on Domestic Corporation by Publi- 
cation. — In any action or proceeding in this State where the defendant is a 
corporation created by or organized under the laws of this State and no officer 
or agent therof upon whom service of process can.be made can, after due dili- 
gence, be found in this State, and this is made to appear by affidavit, then pro- 
cess may be served upon said corporation by publication provided in Section 
428 of this Chapter. 

Civ. P. '22, § 391 ; 1920, XXXI, 797. 

§ 428. Publication of Summons. — Where the person on whom the service 
of the summons is to be made cannot, after due diligence, be found within the 
State, and that fact appears by affidavit to the satisfaction of the Court, or a 
Judge thereof, the Clerk of the Court of Common Pleas, Master, or the Probate 
Judge of the county where the trial is to be had, and it in like manner appears 
that a cause of action exists against the defendant in respect to whom the service 
is to be made, or that he is a proper party to an action relating to real property 
in this State, such Court, Judge, Clerk, Master, or Judge of Probate, may grant 
an order that the service be made by the publication of the summons in either 
of the following cases: (-1) Where the defendant is a foreign corporation, has 
propertj'" within the State or the cause of action arose therein. (2) Where the de- 
fendant being a resident of this State, has departed therefrom, with intent to de- 
fraud his creditors, or to avoid the service of a summons, or keeps himself con- 
cealed therein with like intent. (3) Where he is not a resident of this State, but 
has property therein, and the Court has jurisdiction of the subject of the action. 
(4) Where the subject of the action is real or personal property in this State, 
and the defendant has or claims a lien or interest, actual or contingent, therein, 
or the relief demanded consists wholly or partly in excluding the defendant 
from any interest or lien therein. The order shall direct the publication to be 
made in one newspaper, to be designated by the officer before whom the appli- 
cation is made, as most likely to give notice to the person to be served, and for 

4 



§ 428 Code op Civil Procedure 120 

such length of time as may be deemed reasonable, not less than once a week 
for three weeks. In case of publication, the Court, Judge, Clerk, Master, or Judge 
of Probate shall also direct a copy of the summons to be forthwith deposited in 
the postoffice, directed to the person to be served at his place of residence, unless 
it appears that such residence is neither known to the party making the applica- 
tion, nor can, with reasonable diligence, be ascertained by him. When publica- 
tion is ordered, personal service of the summons out of the State is equivalent 
to publication and deposit in the postoffice. And such personal service so made 
and likewise in Magistrates' Courts shall be complete and final on the day of 
the date of the personal service of the summons as fully as if such personal 
service had been made under the provisions of Section 426 of this Chapter. 
In case of minors, in like cases, a similar order shall be made and like proceed- 
ings be had as in case of adults. Personal service of the summons out of the State 
shall be equivalent to publication and deposit in the postoffice, and when such 
service is had, no order for publication or deposit in the postoffice shall be 
necessary. In case of persons imprisoned in the penitentiary, or in the jail of 
any county in this State, and in case of lunatics confined in the State Hospital 
for the Insane, or in any other place of confinement, personal service of the 
summons and complaint, or other process affecting the rights of such persons, 
shall be made by the Sheriff of the county in which such persons shall be im- 
prisoned or confined, with like proof of service as required in case of minors, 
and thereupon the Judge of the Court, or Magistrate before whom the action 
is to be tried, shall appoint some attorney or other competent person to act as 
guardian ad litem for any person so imprisoned or confined, who shall receive 
out of the property of such persons a reasonable compensation for such service 
rendered in their behalf ; and the case shall proceed as in other cases of persons 
not under disabilities : Provided, That in cases of persons imprisoned or con- 
fined, as herein stated, outside of this State, service by publication shall be 
deemed sufficient. The defendant against whom publication is ordered, or his 
representatives on application and sufficient cause shown at any time before 
judgment, must be allowed to defend the action, and the defendant against 
whm publication is ordered, or his representatives, may, in like manner, upon 
good cause shown, be allowed to defend after judgment, or at any time within 
one year after notice thereof, and within seven years after its rendition, on such 
terms as may be just; and if the defense be successful, and the judgment, or 
any part thereof, has been collected or otherwise enforced, such restitution 
may thereupon be compelled as the Court directs ; but the title to property 
sold under such judgment to a purchaser in good faith shall not be thereby 
affected. And in all cases where publication is made, the complaint must be first 
filed and the summons, as published, must state the time and place of said filing. 
In actions affecting the title to real property, or for the partition of real estate, 
or for the foreclosure of mortgage on real estate, if any party or parties having 
any interest or lien upon such mortgaged premises are unknown to the plain- 
tiff, and the residence of such party or parties cannot, with reasonable dili- 
gence, be ascertained by him, and such facts shall be made to appear by affidavit 
to the Court, or Judge, Clerk of the Court, Master, or Judge of Probate when 
the trial is to be had, such Court, Judge, Clerk, Master, or Judge of Probate 
shall grant an order that the summons be served on such unknown party or 
parties by publishing the same for three weeks, once a week, in a newspaper 
printed in the county where the premises are situated, which publication shall 
be equivalent to a personal service on such unknown party or parties. Magis- 
trates may grant order of publication of summons against the absent parties. 



121 Code of Civil Procedure § 429 

The Magistrates of this State are hereby invested, in actions brought in their 
Courts, within their jurisdiction, to grant orders of publication against absent 
defendants, in the same manner and to the same extent as authorized in this 
Section to be done by the Circuit Court or a Judge thereof, or the Clerks of 
Common Pleas, the Master, or the Probate Judge ; and the service of any sum- 
mons so made upon any absent defendant, or defendants, shall have the same 
binding force and effect as such service would have in the Court of Common 
Pleas: Provided, That the time for publication of summons in Magistrate's 
Courts shall be once a week for not less than three weeks. 

Civ. P. '22. § 392 ; Civ. P. '12, § 185 ; Civ. P. '02, § 156 ; 1870, XIV, § 158 ; 1876, XVI, 
190; 1898, XXII, 698; 1901, XXIII, 635; 1904, XXIV, 879; 1913, XXVIII, 40; 1914, 
XXVIII, 534. 

§ 429. Proceedings When Part only of Defendants Served — Partners. — 

Where the action is against two or more defendants, and the summons is served 
on one or more of them, but not on all of them, the plaintiff may proceed as 
follows : 

(1) If the action be against defendants jointly indebted upon contract, he 
may proceed against the defendant served, unless the Court otherwise direct; 
and, if he recover judgment, it may be entered against all the defendants thus 
jointly indebted, so far only as that it may be enforced against the joint property 
of all and the separate property of the defendants served; and, if they are 
subject to arrest, against the persons of the defendants served; or, 

(2) If the action be against the defendants severally liable, he may proceed 
against the defendants served, in the same manner as if they were the only 
defendants. 

(3) If all the defendants have been served, judgment may be taken against 
any or either of them severally, where the plaintiff would be entitled to judg- 
ment against such defendant or defendants, if the action had been against them, 
or any of them, alone. 

(4) If the name of one or more partners shall, for any cause, have been 
omitted in any action in which judgment shall have passed against the defend- 
ants named in the summons, and such omission shall not have been pleaded 
in such action, the plaintiff, in case of judgment therein shall remain unsatisfied, 
may, by action, recover of such partner separately, upon proving his joint lia- 
bility, notwithstanding he may not have been named in the original action; 
but the plaintiff shall have satisfaction of only one judgment rendered for the 
same cause of action. 

Civ. P. '22, § 393; Civ. P. '12, § 186; Civ. P. '02, § 157; 1870, XIV, § 159. 

§ 430. When Service by Publication Complete. — In the cases mentioned 

in Section 428 this Chapter, the service of summons shall be deemed complete 

at the expiration of the time prescribed by the order for publication, except in 

the case of personal service, in which case such service shall be complete and 

final on the day on which it is made, as provided in said Section 428 of this 

Chapter. 

Civ. P. '22, § 394 ; Civ. P. '12, § 187 ; Civ. P. '02, § 158 ; 1870, XIV, § 160 ; 1901, XXIII, 
035. 

§ 431. Proof of Service.— Proof of the service of the summons, and of the 
complaint or notice, if any, accompanying the same must be as follows : 

(1) If served by the Sheriff, his certificate thereof; or 

(2) If by any other person, his affidavit thereof; or, 

(3) In case of publication, the affidavit of the printer, or his foreman, or 
principal clerk, showing the same, and an affidavit of a deposit of a copy of the 



§ 432 Code of Civil Procedure 122 

summons in the postoffice, as required by law, if the same shall have been de- 
posited. 

When the service is made out of the State after the order for publication, the 
proof of such service may be made, if within the United States, by affidavit be- 
fore any person in this State authorized to take an affidavit, or before a Com- 
missioner of Deeds for this State, or a Notary Public, who shall use his official 
seal, or before a Clerk of a Court of record, who shall certify the same by his 
official seal ; or, if made without the limits of the United States, before a Consul 
or Vice Consul or Consular Agent of the United States, who shall use in his 
certificate his official seal. 

(4) The written admission of the defendant. 

In case of service otherwise than by publication, the certificate, affidavit, or 

admission must state the time and place of the service. 

Civ. P. '22, § 395 ; Civ. P. '12, § 188 ; Civ. P. '02, § 159 ; 1870, XIV, § 161 ; 1884, XVIII, 
745; 1891, XX, 1041. 

§ 432. When Jurisdiction of Action Acquired. — ^From the time of the serv- 
ice of the summons in a civil action, or the allowance of a provisional remedy, 
the Court is deemed to have acquired jurisdiction, and to have control of all the 
subsequent proceedings. A voluntary appearance of a defendant is equivalent to 
personal service of the summons upon him. 

Civ. P. '22, § 396 ; Civ. P. '12, § 189 ; Civ. P. '02, § 160 ; 1870, XIV, § 162. 

§ 433. Bringing and Prosecuting Suits Affecting Obligations of the State 
Bond. — No suit shall be filed, nor shall any pending suit be prosecuted, in any 
Court of this State affecting the issuance or sale of any State security, certifi- 
cate of indebtedness, or bond, the intent or effect or which is to prevent, delay, 
or effect the sale or other disposition thereof, or which would have this effect, 
unless and until the plaintiff in said action shall make application to the Cir- 
cuit Judge presiding in the Circuit in which the action is brought; or if there 
be no Judge presiding, then to the resident Judge of such Circuit, or to the 
Chief Justice of the Supreme Court, if the same be brought in the original juris- 
diction thereof ; or, if he be disabled or disqualified, to an Associate Justice for 
leave to bring and/or prosecute said action and upon convincing such Judge or 
Justice of the merit in such action or proceeding, the same shall then not be filed 
or prosecuted unless and until the plaintiff or plaintiffs shall file in such Court 
a bond in such amount as will adequately protect the State against loss, damage, 
injury and costs in an amount of not less than twenty-five thousand ($25,000.00) 
dollars, subscribed by a duly licensed surety company, or the deposit of a like 
amount in cash, conditioned to pay all loss, damage, injury and costs, including 
attorney 's fees, which the State may sustain in any such action : Provided, 
further, That before any action as hereinabove referred to shall be hereafter 
commenced at least ten days notice thereof shall be given to the Governor and 
the State Treasurer, together with a copy of the proposed complaint, so as to 
afford them an opportunity to appear before the Judge or Justice in opposition 
to the filing of the suit and to be heard upon the amount of the bond to be re- 
quired. 

1930, XXXVI, 1221. 



123 



Code of Civil Procedure 



§ 434 



CHAPTER 2 

Notices, Filing and Service of Papers 



434. Notices. 

435. Personal Service. 
436-8. Service by Mail. 

439. Four Days' Notice of Motion. 

440. When Service Unnecessary. 



441. Service on Non-residents. 

442. Filing of Summons and Pleadings. 

443. Service on Attorney. 

444. Chapter not Applicable in Contempt 
Cases. 



§ 434. Notices, Etc. — How Served. — Notices shall be in writing, and no- 
tices and other papers may be served on the party or attorney, in the manner 
prescribed in the next three Sections, wliere not otherwise provided by this 
Code of Procedure. 

Civ. P. '22. § 760 ; Civ. P. '12, § 446 ; Civ. P. '02, § 408 ; 1870, XIV, § 423. 

§ 435. Service — How Made. — The service may be personal, or by delivery 
to the party or attorney on whom the service is required to be made; or it 
may be as follows : 

(1) If upon an attorney, it may be made during his absence from his office, 
by leaving it with the clerk therein, or with a person having charge thereof; 
or, when there is no person in the office, by leaving it, between the hours of six 
in the morning and nine in the evening, in a conspicuous place in the office ; or, 
if it be not open so as to admit of such service, then by leaving it at the at- 
torney's residence, with some person of suitable age and discretion. 

(2) If upon a party, it may be made by leaving the paper at his residence 
between the hours of six in the morning and nine in the evening, with some 
person of suitable age and discretion. 

Civ. P. '22, § 761 ; Civ. P. '12, § 447 ; Civ. P. '02, § 409 ; 1870, XIV, § 424. 

§ 436. Service by Mail.— Service by mail may be made where there is a 

regular communication hy mail. 

Civ. P. '22, § 762 ; Civ. P. '12, § 448 ; Civ. P. '02, § 410 ; 1870, XIV, § 425 ; 1925, XXXIV, 
17. 

§ 437. Deposit of Papers, Address, and Payment of Postage. — In case of 
service by mail, the paper must be deposited in the postoffice, addressed to the 
person on whom it is to be served, at his place of residence and the postage 
paid. 

Civ. P. '22, § 763 ; Civ. P. '12, § 449 ; Civ. P. '02, § 411 ; 1870, XIV, § 426. 

§ 438. Double Time Where Service by Mail. — "When the service is by mail, 
it shall be double the time required in cases of personal service. 
Civ. P. '22, § 764 ; Civ. P. '12, § 450 ; Civ. P. '02, § 412 ; 1870, XIV, § 427. 

§ 439. Notice of Motion, Etc., Where Personally Served. — Notice of a 
motion or other proceeding before a Court or Judge, when personally served, 
shall be given at least four days before the time appointed therefor. 

Civ. P. '22, § 765 ; Civ. P. '12, § 451 ; Civ. P. '02, § 413 ; 1870, XIV, § 428. 

§ 440. When Papers Need Not Be Served on Defendant. — When a defend- 
ant shall not have demurred or answered, service of notice or papers in the 
ordinary proceedings in an action need not to be made upon him unless he 
be imprisoned for want of bail, but shall be made upon him or his attorney, 
if notice of appearance in the action has been given. 

Civ. P. '22, § 766 ; Civ. P. '12, § 452 ; Civ. P. '02, § 414 ; 1870, XIV, § 429. 

§ 441. Service of Papers Where Parties Reside Out of State. — Where a 
plaintiff or a defendant who has demurred or answered, or gives notice of ap- 



§ 442 ■ Code of Civil Procedure 124 

pearance, resides out of the State, and has no attorney in the action, the service 
may be made by mail, if his residence be known; if not known, on the Clerk 
for the party. 

Civ. P. '22, § 767 ; Civ. P. '12, § 453 ; Civ. P. '02, § 415 ; 1870, XIV, § 430. 

§ 442. Summons and Pleadings to Be Filed. — The summons and the several 
pleadings in an action shall be filed with the Clerk within ten days after the 
service thereof respectively, or the adverse party, on proof of the omission, shall 
be entitled without notice to an order from a Judge that the same be filed within 
a time to be specified in the order, or be deemed abandoned. 

Civ. P. '22, § 768 ; Civ. P. '12, § 454 ; Civ. P. '02, § 416 ; 1870, XIV, § 431. 

§ 443. Service on Attorney. — Where a party shall have an attorney in 
the action, the service of papers shall be made upon the attorney instead of 
the party. 

Civ. P. '22, § 769 ; Civ. P. '12, § 455 ; Civ. P. '02, § 417 ; 1870, XIV, § 432. 

§ 444. When This Chapter Does not Apply. — The provisions of this Chapter 
shall not apply to the service of a summons, or other process, or of any paper 
to bring a party into contempt. 

Civ. P. '22, § 770 ; Civ. P. '12, § 456 ; Civ. P. '02, § 418 ; 1870, XIV, § 433. 



TITLE 6 

Pleadings in Civil Actions 

Chapter 1. The Complaint, § 445. 

Chapter 2. The Demurrer, § 448. 

Chapter 3. The Answer, § 458. 

Chapter 4. The Eeply, § 462. 

Chapter 5. General Eules of Pleading, § 465. 

Chapter 6. Amendments and Relief in Case of Mistake, § 481. 



CHAPTER 1 

The Complaint 

445. Forms of Pleading. 446. Tlie Complaint. 

447. Contents of Complaint. 

§ 445. Forms of Pleading. — There shall be no other forms of pleading in 
civil actions in courts of record in this State, and no other rules by which the 
sufficiency of the pleadings is to be determined, than those prescribed by this 
Code of Procedure. 

Civ. P. '22, § 397 ; Civ. P. '12, § 190 ; Civ. P. '02, § 161 ; 1870, XIV, § 163. 

§ 446. Complaint. — The first pleading on the part of the plaintiff is the 
complaint. 

Civ. P. '22, § 398 ; Civ. P. '12, § 191 ; Civ. P. =02, § 162 ; 1870, XIV, § 164. 

§ 447. Complaint — ^What to Contain. — The complaint shall contain : 

(1) The title of the cause, specifying the name of the Court in which the 
action is brought, the name of the county in which the plaintiff desires the trial 
to be had, and the names of the parties to the action — plaintiff and defendant. 

(2) A plain and concise statement of the facts constituting a cause of action, 
without unnecessary repetition. 



125 Code of Civil Procedure § 448 

(3) A demand of the relief to which the plaintiff supposes himself entitled. 
Civ. P. '22, § 399 ; Civ. P. '12, § 192 ; Civ. P. '02, § 163 ; 1870, XIV, § 165. 



CHAPTER 2 
The Demurrer 

448. Defendant to Demur or Answer. 453. Objection Waived. 

449. When Demurrer Proper, 454. Objection to Jurisdiction. 

450. Demurrer to iSpecify Objection. 455-6. Notice. 

451. Amended Complaint. 457. Prescribed Mode not Exclusive. 

452. Objection not Appearing in Com- 
plaint. 

§ 448. Defendant to Demur or Answer. — The only pleading on the part of 
the defendant is either a demurrer or an answer. It must be served within 
twenty days after the service of the copy of the complaint. 

Civ. P. '22, § 400 ; Civ. P. '12, § 193 ; Civ. P. '02, § 164 ; 1870, XIV, § 166. 

§ 449. When the Defendant May Demur. — The defendant may demur to 
the complaint when it shall appear upon the face thereof, either : 

(1) That the Court has no jurisdiction of the person of the defendant or the 
subject of the action ; or, 

(2) That the plaintiff has not legal capacity to sue; or, 

(3) That there is another action pending between the same parties, for the 
same cause, or, 

(4) That there is a defect of parties, plaintiff or defendant; or, 

(5) That several causes of action have been improperly united; or, 

(6) That the complaint does not state facts sufficient to constitute a cause 
of action. 

Civ. P. '22, § 401 ; Civ. P. '12, § 194 ; Civ. P. '02, § 165 ; 1870, XIV, § 167. 

§ 450. Demurrer — ^What to Specify. — The demurrer shall distinctly specify 
the grounds of objection to the complaint. Unless it do so, it may be disre- 
garded. It may be taken to the whole complaint, or to any of the alleged causes 
of action stated therein. 

Civ. P. '22, § 402 ; Civ. P. '12, § 195 ; Civ. P. '02, § 166 ; 1870, XIV, § 168. 

§ 451. How to Proceed, if Complaint Be Amended. — If the complaint be 
amended, a copy thereof must be served on the defendant, who must answer it 
within twenty days, or the plaintiff, upon filing with the Clerk due proof of 
the service, and of the defendant 's omission, may proceed to obtain judgment, as 
provided by Section 526. 

Civ. P. '22, § 403 ; Civ. P. '12, § 196 ; Civ. P. '02, § 167 ; 1870, XIV, § 169. 

§ 452. Objection Not Appearing in Complaint. — ^When any of the matters 
enumerated in Section 449 do not appear upon the face of the complaint, the 
objection may be taken by answer. 

Civ. P. '22, § 404 ; Civ. P. '12, § 197 ; Civ. P. '02, § 168 ; 1870, XIV, § 170. 

§ 453. Objection Waived. — If no such objection be taken, either by de- 
murrer or answer, the plaintiff or defendant shall be deemed to have waived the 
same, excepting only the objection to the jurisdiction of the Court, and the ob- 
jection that the complaint does not state facts sufficient to constitute a cause of 
action, or that the answer does not state facts sufficient to constitute a defense : 
Provided, That in cases where the objection is made that the complaint does not 
state facts sufficient to constitute a cause of action, or that the answer does not 
state facts sufficient to constitute a defense, the party making such objection shall 



§ 454 Code of Civil Procedure 126 

give at least five days ' notice, in writing, to the opposite party of the grounds of 

such objection. 

Civ. P. '22, § 405 ; Civ. P. '12, § 198 ; Civ. P. '02, § 169 ; 1870, XIV, § 171 ; 1903, XXIV, 
130. 

§ 454. Objection to Jurisdiction of Courts or Tribunals, How Made. — 

When in any case or proceeding before any Court or other tribunal any party 
shall appear for the sole purpose of objecting to the jurisdiction of such Court 
or tribunal, and such Court or tribunal shall upon such objection being made 
overrule the same, such party may give notice, either to the Court or tribunal 
or to the opposing party, that he intends to, rely on such jurisdictional objection 
or reserve his rights thereunder. Upon the overruling of such objection to the ju- 
risdiction and giving of such notice, such party may thereafter appear generally 
or answer or plead or contest upon the merits, and such general appearance, 
answer, pleading or contest upon the merits shall not be deemed a waiver of the 
objection to the jurisdiction. 
Civ. P. '22, § 406 ; 1919, XXXI, 55. 

§ 455. Notice. — The notice required by Section 454 need not be in any 
.special form or in the exact language of this Chapter, but any notice which in- 
forms the Court, tribunal or opposing party in substance of the intention of the 
party to rely on the objection made, or reserving his rights thereunder, shall 
be deemed a sufficient notice. The notice may be oral, if given to the Court or 
tribunal in the presence of the opposing party or his attorney, in which case it 
shall be the duty of the Court or tribunal to make a note of the same, so as to 
preserve the rights of the party, but in all other cases such notice shall be in 
writing. Notice to the attorney representing any party shall be deemed notice 
to the party. 

Civ. P. '22, § 407; 1919, XXXI, 55. - 

§ 456. Who May Give Notice. — The word party as used in Sections 454, 
455 and 457 of this Chapter shall include parties and all other persons inter- 
ested in the case or proceeding and having a legal right to make the objection 
to the jurisdiction of the Court or tribunal. 

Civ. P. '22, § 408; 1919, XXXI, 55. 

§ 457. Mode Prescribed Not Exclusive, in What Cases. — Nothing in this 
Chapter shall be construed to impair the right of any party to object to the 
jurisdiction of any Court or tribunal at any time and place in any manner now 
allowed by law and the practice in this State, when-such objection is based upon 
the lack of jurisdiction of the subject matter of the case or proceeding. 

Civ. P. '22, § 409 ; 1919, XXXI, 55. 



CHAPTERS 

The Answer 

4.58. Contents of Answer. 460. Wlien Demurrer and Answer Al- 

459. Counterclaim. lowed. 

461. Sham and Irrelevant Defenses. 

§ 458. Answer — ^What to Contain. — The answer of the defendant must con- 
tain : 

(1) A general or specific denial of each material allegation of the complaint 
controverted by the defendant, or of any knowledge or information thereof suf- 
'ficient to form a belief. 



127 Code op Civil Procedure § 459 

(2) A statement of any new matter constituting a defense or counterclaim, 
in ordinary and concise language, without repetition. 

Civ. P. '22, § 410 ; Civ. P. '12, § 199 ; Civ. P. '02, § 170 ; 1870, XIV, § 172. 

§ 459. Counterclaim — Several Defenses. — The counterclaim mentioned in 
the last Section must be one existing in favor of a defendant, and against a plain- 
tiff, between whom a several judgment might be had in the action, and arising 
out of one of the following causes of action : 

(1) A cause of action arising out of the contract or transaction set forth in 
the complaint as the foundation of the plaintiff's claim, or connected with the 
subject of the action. 

(2) In an action arising on contract, any other cause of action arising also 
on contract, and existing at the commencement of the action. 

The defendant may set forth by answer as many defenses and counterclaims 
as he may have, whether they be such as have been heretofore denominated legal 
or equitable, or both. They must each be separately stated, and refer to the causes 
of action which they are intended to answer, in such manner that they may be 
intelligibly distinguished. 

Civ. P. '22, § 411 ; Civ. P. '12, § 200 ; Civ. P. '02, § 171 ; 1870, XIV, § 173. 

§ 460. Demurrer and Answer — When Allowed. — The defendant may de- 
mur to one or more of several causes of action stated in the complaint, and an- 
swer the residue. 

Civ. P. '22, § 412 ; Civ. P. '12, § 201 ; Civ. P. '02, § 172 ; 1870, XIV, § 174. 

§ 461. Sham and Irrelevant Defenses to Be Stricken Out. — Sham and ir- 
relevant answers and defenses may be stricken out on motion, and upon such, 
terms as the Court may, in its discretion, impose. 

Civ. P. '22, § 413 ; Civ. P. '12, § 202 ; Civ. P. '02, § 173 ; 1870, XIV, § 175. 



CHAPTEH 4 

The Heply 

462. Reply by Demurrer or Answer. 463. Motion for Judgment upon Answer. 

464. Demurrer to Reply. 

§ 462. Reply — Demurrer to Answer. — When the answer contains new mat- 
ter constituting a counterclaim, the plaintiff may, within twenty days, reply to 
such new matter, denying generally or specifically each allegation controverted 
by him, or any knowledge or information thereof sufficient to form a belief ; and 
he may allege, in ordinary and concise language, without repetition, any new 
matter not inconsistent with the complaint, constituting a defense to such new 
matter in the answer; and the plaintiff may, in all cases, demur to an answer 
containing new matter, where, upon its face, it does not constitute a counter- 
claim or defense; and the plaintiff may demur to one or more of such defenses 
or counterclaims and reply to the residue of the counterclaims. And in other 
cases, where an answer contains new matter constituting a defense by way of 
avoidance, the Court may, in its discretion, on the defendant's motion, require 
a reply to such new matter; and in that case the reply shall be subject to the 
same rules as a reply to a counterclaim. 

Civ. P. '22, § 414 ; Civ. P. '12, § 203 ; Civ. P. '02, § 174 ; 1870, XIV, § 176. 

§ 463. Motion for Judgment Upon Answer. — If the answer contain a state- 
ment of new matter constituting a counterclaim, and the plaintiff fail to reply 
or demur thereto within the time prescribed by law, the defendant may move, 



§ 464 Code of Civil Proceduee . 128 

on a notice of not less than ten days, for such judgment as he is entitled to upon 
such statement ; and, if the case require it, a writ of inquiry of damages may be 
issued. 

Civ. P. '22, § 415 ; Civ. P. '12, § 204 ; Civ. P. '02, § 175 ; 1870, XIV, § 177. 

§ 464. Demurrer to Reply. — If a reply of a plantiff to any defense set up 
by the answer of the defendant be insufficient, the defendant may demur there- 
to, and shall state the grounds thereof. 

Civ. P. '22, § 416 ; Civ. P. '12, § 205 ; Civ. P. '02, § 176 ; 1870, XIV, § 178. 



CHAPTER 5 

General Rules of Pleading 

465-6. Subscription and Verification. 473-4. Libel and Slander. 

467. Statement of Account. 475. Pleading in Tort Action. 

468. Pleadings Construed Liberally. 476. Counterclaim in Tort Action. 

469. Irrelevant, Redundant and Indefinite 477. Actions to Recover Distrained Prop- 
Matter, erty. 

470. Pleading a Judgment. 478. Joinder of Causes of Action. 

471. Conditions Precedent. 479. Allegation not Denied. 

472. Pleading Statutes. 480. Cross-Actions Between Co-defendants. 

§ 465. Pleadings to Be Subscribed and Verified. — Every pleading in a 
Court of record must be subscribed by the party or his attorney ; and when any 
pleading is verified, every subsequent pleading, except a demurrer, must be 
verified also. 

Civ. P. '22, § 417 ; Civ. P. '12, § 206 ; Civ. P. '02, § 177 ; 1870, XIV, § 179. 

§ 466. Pleadings — How Verified. — The verification must be to the effect 
that the same is true to the knowledge of the person making it, except as to those 
matters stated on information and belief, and, as to those matters, he believes it 
to be true; and must be by the affidavit of the party, or, if there be several 
parties united in interest, and pleading together, by one at least of such parties 
acquainted with the facts, if such party be within the county where the at- 
torney resides, and capable of making the affidavit. The affidavit may also be 
made by the agent or attorney, if the action or defense be founded upon a writ- 
ten instrument for the payment of money only, and such instrument be in the 
possession of the agent or attorney, or if all the material allegations of the 
pleading be within the personal knowledge of the agent or attorney. When the 
pleading is verified by any other person than the party, he shall set forth in the 
affidavit his knowledge, or the grounds of his belief on the subject, and the rea- 
sons why it is not made by the party. When a corporation is a party, the verifica- 
tion may be made by any officer or any agent thereof ; and when the State, or any 
officer thereof in its behalf, is a party, the verification may be made by any per- 
son acquainted with the facts. The verification may be omitted when an admission 
of the truth of the allegation might subject the party to prosecution for felony. 
And no pleading can be used in a criminal prosecution against the party as a 
proof of a fact admitted or alleged in such pleading : Provided, That the verifi- 
cation of any pleading in any Court of record in this State may be omitted in 
all cases where the party called upon to verify would be privileged from testify- 
ing as a witness to the truth of any matter denied by such pleading. 

Civ. P. '22, § 418; Civ. P. '12, § 207; Civ. P. '02, § 178; 1870, XIV, § 180; 1929, 
XXXVI, 102. 

§ 467. How to state an Account in Pleading. — It shall not be necessary for 
a party to set forth in a pleading the items of an account therein alleged ; but 



129 Code of Civil Procedure § 468 

he shall deliver to the adverse party, within ten days after a demand thereof in 
writing, a copy of the account, which, if the pleading is verified, must be veri- 
fied by his own oath, or that of his agent or attorney, if within the personal 
knowledge of such agent or attorney, to the effect that he believes it to be true, 
or be precluded from giving evidence thereof. The Court, or a Judge thereof, 
may order a further account, when the one delivered is defective, and the Court 
may, in all cases, order a bill of particulars of the claim of either party to be 
furnished. 

Civ. P. '22, § 419 ; Civ. P. '12, § 208 ; Civ. P. '02, § 179 ; 1870, XIV, § 181. 

§ 468. Pleadings to Be Liberally Construed. — In the construction of a 
pleading for the purpose of determining its effect, its allegations shall be liber- 
ally construed, with a view of substantial justice between the parties. 

Civ. P. '22, § 420 ; Civ. P. '12, § 209 ; Civ. P. '02, § 180 ; 1870, XIV, § 182. 

§ 469. Striking Out Irrelevant or Redundant Matter and Making Indef- 
inite Matter More Definite. — If irrelevant or redundant matter be inserted in 
a pleading, it may be stricken out, on motion of any person aggrieved thereby. 
And when the allegations of a pleading are so indefinite or uncertain that the 
precise nature of the charge or defense is not apparent, the Court may require 
the pleading to be made definite and certain by amendment. 

Civ. P. '22, § 421 ; Civ. P. '12, § 210 ; Civ. P. '02, § 181 ; 1870, XIV, § 183. 

§ 470. Judgment — How to Be Pleaded. — In pleading a judgment, or other 
determination of a Court or otficer of special jurisdiction, it shall not be neces- 
sary to state the facts conferring jurisdiction, but such judgment or determina- 
tion may be stated to have been duly given or made. If such allegation be con- 
troverted, the party pleading shall be bound to establish on the trial the facts 
conferring jurisdiction. 

Civ. P. '22, § 422 ; Civ. P. '12, § 211 ; Civ. P. '02, § 182 ; 1870, XIV, § 184. 

§ 471. Conditions Precedent — How to Be Pleaded. — ^In pleading the per- 
formance of conditions precedent in a contract, it shall not be necessary to state 
the facts showing such performance; but it may be stated generally that the 
party duly performed all the conditions on his part; and if such allegation be 
controverted, the party pleading shall be bound to establish, on the trial, the 
facts showing such performance. In an action or defense founded upon an in- 
strument for the payment of money, it shall be sufficient for a party to give a 
copy of the instrument, and to state that there is due to him thereon from the 
adverse party a specified sum, which he claims. 

Civ. P. '22, § 423 ; Civ. P. '12, § 212 ; Civ. P. '02, § 183 ; 1870, XIV, § 185. 

§ 472. Private Statutes — How to Be Pleaded. — ^In pleading a private 
statute, or a right derived therefrom, it shall be sufficient to refer to such 
statute by its title and the day of its passage, and the Court shall thereupon take 
judicial notice thereof. 

Civ. P. '22, § 424 ; Civ. P. '12, § 213 ; Civ. P. '02, § 184 ; 1870, XIV, § 186. 

§ 473. Libel and Slander — How Stated in Complaint. — In an action for 
libel or slander, it shall not be necessary to state, in the complaint, any extrinsic 
facts, for the purpose of showing the application to the plaintiff of the de- 
famatory matter out of which the cause of action arose ; but it shall be sufficient 
to state generally that the same was published or spoken concerning the plain- 
tiff; and if such allegation be controverted the plaintiff shall be bound to estab- 
lish, on trial, that it was so published or spoken. 

Civ. P. '22, § 425 ; Civ. P. '12, § 214 ; Civ. P. '02, § 185 ; 1870, XIV, § 187. 



§ 474 Code of Civil Procedure 130 

§ 474. Answer in Such Cases. — In the action mentioned in the last Section, 
the defendant may, in his answer, allege both the truth of the matter charged 
as defamatory, and any mitigating circumstances, to reduce the amount of dam- 
ages ; and, whether he prove the justification or not, he may give, in evidence, 
the mitigating circumstances. 

Civ. P. '22, § 426 ; Civ. P. '12, § 215 ; Civ. P. '02, § 186 ; 1S70, XIV, § 188. 

§ 475, Pleading in Actions Ex Delicto for Damages Regulated. — In all ac- 
tions ex delicto in which vindictive, punitive or exemplary damages are claimed 
in the complaint, it shall be proper for the party to recover also his actual dam- 
ages sustained, and no party shall be required to make any separate statement 
in the complaint in such action, nor shall any party be required to elect whether 
he will go to trial for actual or other damages, but shall be entitled to submit 
his whole case to the jury under the instruction of the 'Court. 

How Two or More Causes op Action for Damages May Be Pleaded. — In all 
cases where two or more acts of negligence or other wrongs are set forth in the 
complaint, as causing or contributing to the injury, for which such suit is 
brought, the party plaintiff in such suit shall not be required to state such sev- 
eral acts separately, nor shall such party be required to elect upon which he will 
go to trial, but shall be entitled to submit his whole case to the jury under the 
instruction of the Court and to recover such damages as he has sustained, 
whether such damages arose from one or another or all of such acts or wrongs 
alleged in the complaint. 

Civ. P. '22, § 427 ; Civ. P. '12, § 216 ; Civ. P. '02, § 186a ; 1898, XXII, 693. 

§ 476. Pleadings of Counterclaim by Defendant in Action in Tort. — In all 

actions sounding in tort the defendant shall have the right to plead a similar 
cause of action against the plaintiff by way of counterclaim : Provided, That the 
cause of action of the plaintiff and defendant arise out of the same state of facts. 
Civ. P. '22, § 428 ; 1920, XXXI, 748. 

§ 477. Answers in Actions to Recover Property Distrained for Damage. — 

In action to recover the possession of property distrained doing damage, an an- 
swer that the defendant, or person by whose command he acted, was lawfully 
possessed of the real property upon which the distress was made, and that the 
property distrained was at the time doing damage thereon, shall be good with- 
out setting forth the title to such real property. 

Civ. P. '22, § 429 ; Civ. P. '12, § 217 ; Civ. P. '02, § 187 ; 1870, XIV, § 189. 

§ 478. What Causes of Action May Be Joined. — The plaintiff may unite, in 
the same complaint, several causes of action, whether they be such as have 
been heretofore denominated legal or equitable, or both, where they all arise 
out of : 

(1) The same transaction, or transactions connected with the same subject 
of action; or, 

(2) Contract, express or implied ; or, 

(3) Injuries with or without force, to person and property, or either; or, 

(4) Injuries to character; or, 

(5) Claims to recover real property, with or without damages for the with- 
holding thereof, and the rents and profits of the same ; or, 

(6) Claims to recover personal property, with or without damages for the 
withholding thereof ; or, 

(7) Claims against a trustee, by virtue of a contract, or by operation of law. 
But the causes .of action, so united, must all belong to one of these classes, 

and, except in actions for the foreclosure of mortgages, must affect all the 



131 Code of Civil Procedure § 479 

parties to the action, and not require different places of trial, and must be 
separately stated. In actions to foreclose mortgages, the Court shall have povper 
to adjudge and direct the payment by the mortgagor of any residue of the 
mortgage debt that may remain unsatisfied after a sale of the mortgaged prem- 
ises in cases in which the mortgagor shall be personally liable for the debt se- 
cured by such mortgage ; and if the mortgage debt be secured by the covenant 
or obligation of any person other than the mortgagor, the plaintiff may make 
such person a party to the action, and the Court may adjudge payment of the 
residue of such debt remaining unsatisfied after a sale of the mortgaged premises 
against such other person, and may enforce such judgment as in other cases. 

Rendering Judgment and Order Sale at Same Time — Judgment to Be 
Credited. — The Court shall also have the power to render judgment against 
the parties liable for the payment of the debt secured by the mortgage and to 
direct at the same time the sale of the mortgaged premises. The said judgment so 
rendered may be entered and docketed in the Clerk's office in the same manner 
as other judgments. Upon sale of the mortgaged premises, the officer making 
the sale under the order of the Court shall credit upon the judgment so ren- 
dered for the debt the amount or amounts paid to the plaintiff from the pro- 
ceeds of the sale. 

Parties in Action for Strict Foreclosure and Sale. — But it shall not be 
necessary to make the personal representative of a deceased mortgagor a party 
to any foreclosure proceeding; nor in any foreclosure proceeding (if the mort- 
gagor be dead) shall it be necessary to first establish the debt by the judgment 
of some Court of competent jurisdiction in order to obtain a decree of fore- 
closure and sale ; nor shall it be necessary to make the mortgagor who may have 
conveyed the mortgaged premises a party to any action for foreclosure where 
no judgment for any deficiency is demanded. 

Civ. P. '22. § 430 ; Civ. P. '12, § 218 : Civ. P. '02, § 188 ; 1870, XIY, § 190 ; 1894, XXI, 816, 
§ 2 ; 1900. XXIII, 349. 

§ 479. Allegation Not Denied — When to Be Deemed True. — Every material 
allegation of the complaint, not controverted by the answer, as prescribed in 
Section 458, and every material allegation of new matter in the answer, con- 
stituting a counterclaim, not controverted by the replj^, as prescribed in Section 
462, shall, for the purposes of the action, be taken as true. But the allegation of 
new matter in the answer, not relating to a counterclaim, or of new matter in a 
reply, is to be deemed controverted by the adverse party as upon a direct denial 
or avoidance, as the case may require. 

Civ. P. '22, § 431 ; Civ. P. '12, § 219 ; Civ. P. '02, § 189 ; 1870, XIV, § 191. 

§ 480. Cross-Actions Between Co-defendants in Actions at Law — Plead- 
mgs and Procedure. — ^Whenever a defendant in an action at law shall have a 
cause of action against a co-defendant or co-defendants therein which arose 
from the same transaction, or acts, or negligence, or wrong set forth in plain- 
tiff's complaint, said defendant is hereby permitted to set forth such cause of ac- 
tion demanding relief in his answer, along with such defense as he might have 
to plaintiff's cause of action, and serve such answer upon such co-defendant or 
co-defendants against whom the relief is demanded, and such co-defendant or 
co-defendants shall be required to plead thereto in the same way and manner 
and within the same time as required in the original summons which the plain- 
tiff shall have issued. Upon the trial, all issues joined by the entire pleadings 
shall be determined before the same Court and jury in the same manner as any 



§ 481 Code of Civil Procedure 132 

other action at law. It shall be the duty of the presiding Judge upon the trial 
of such actions to require the jury to write such verdict as determines the rights 
of the plaintiff on the summons and complaint, and to write such verdict as de- 
termines the right of a defendant who has brought a cross action against a co- 
defendant or co-defendants on the answer of such complaining defendant. 
1929, XXXVI, 68. 

CHAPTER 6 

Amendments and Relief in Case of Mistake 

481-3. Variances. 486. Relief in Case of Mistake. 

484. Amendments after Demurrer. 487. Suing Defendant by Fictitious Name. 

485. Amendments before or after Judg- 488. Error not Affecting Substantial 
ment. Right. 

489. Supplemental Pleading. 

§ 481. Material Variances. — No variance between the allegation in a 
pleading and the proof shall be deemed material unless it have actually misled 
the adverse party, to his prejudice, in maintaining his action or defense, upon 
the merits. Whenever it shall be alleged that a party has been so misled, that fact 
shall be proved to the satisfaction of the Court, and in what respect he has been 
misled; and thereupon the Court may order the pleading to be amended, upon 
such terms as shall be just. 

Civ. P. '22, § 432 ; Civ. P. '12, § 220 ; Civ. P. '02, § 190 ; 1870, XIV, § 192. 

§ 482. Immaterial Variances. — Where the variance is not material, as pro- 
vided in the last Section, the Court may direct the fact to be found according 
to the evidence, or may order an immediate amendment without costs. 

Civ. P. '22, § 433 ; Civ. P. '12, § 221 ; Civ. P. '02, § 191 ; 1870, XIV, § 193. 

§ 483. What Not to Be Deemed a Variance. — Where, however, the allega- 
tion of the causes of action or defense to which the proof is directed is not proved, 
not in some particular or particulars only, but in its entire scope and meaning, 
it shall not be deemed a case of variance within the last two Sections, but a 
failure of proof. 

Civ. P. '22, § 434 ; Civ. P. '12, § 222 ; Civ. P. '02, § 192 ; 1870, XIV, § 194. 

§ 484. Amendments of Course, and After Demurrer. — Any pleading may 
be once amended by the party of course, without costs, and without prejudice to 
the proceedings already had, at any time within twenty days after it is served, 
or at any time before the period for answering it. expires; or it can be so' 
amended at any time within twenty days after the service of the answer or de- 
murrer to such pleading, unless it be made to appear to the Court that it was 
done for the purpose of delay, and the plaintiff or defendant will thereby lose 
the benefit of a circuit or term for which the cause is or may be docketed ; and if 
it appear to the Court that such amendment was made for such purpose, the 
same may be stricken out, and such terms imposed as to the Court may seem 
just. In such case a copy of the amended pleading must be served on the ad- 
verse party. After the decision of a demurrer, the Court shall, unless it appear 
that the demurrer was interposed in bad faith, or for purposes of delay, allow 
the party to plead over upon such terms as may be just. If the demurrer be al- 
lowed for the cause mentioned in the fifth subdivision of Section 401, the Court 
may, in its discretion, and upon such terms as may be just, order the action to 
be divided into as many actions as may be necessary to the proper determina- 
tion of the causes of action therein mentioned. 

Civ. P. '22, § 435 ; Civ. P. '12, § 223 ; Civ. P. '02, § 193 ; 1870, XIV, § 195. 



133 Code of Civil Procedure § 485 

§ 485. Amendments by the Court. — The Court may, before or after judg- 
ment, in furtherance of justice, and on such terms as may be proper, amend 
any pleading, process, or proceeding, by adding or striking out the name of any 
party; or by correcting a mistake in the name of a party, or a mistake in any 
other respect; or by inserting other allegations material to the case; or, when 
the amendment does not change substantially the claim or defense, by conform- 
ing the pleading or proceeding to the facts proved. 

Civ. P. ^22, § 436 ; Civ. P. '12, § 224 ; Civ. P. '02, § 194 ; 1870, XIV, § 198. 

§ 486. Court May Give Relief in Case of Mistake. — The Court may like- 
w^ise, in its discretion, and upon such terms as may be just, allow an answer or 
reply to be made, or other act to be done, after the time limited by this Code 
of Procedure, or, by an order, enlarge such time ; and may also, in its discretion 
and upon such terms as may be just, at any time within one year after notice 
thereof, relieve a party from a judgment, order, or other proceeding, taken 
against him through his mistake, inadvertence, surprise, or excusable neglect, 
and may supply an omission in any proceeding ; and whenever any proceeding 
taken by a party fails to conform in any respect to the provisions of this Code of 
Procedure, the Court may, in like manner, and upon like terms, permit an 
amendment of such proceeding, so as to make it conformable thereto. 

Civ. P. '22, § 437 ; Civ. P. '12, § 225 ; Civ. P. '02, § 195 ; 1870, XIV, § 197. 

§ 487. Suing Party by Fictitious Name. — When the plaintiff shall be 
ignorant of the name of the defendant, such defendant may be designated in 
any pleading or proceeding by any name ; and when his true name shall be dis- 
covered, the pleading or proceeding may be amended accordingly. 

Civ. P. '22, § 438 ; Civ. P. '12, § 226 ; Civ. P. '02, § 196 ; 1870, XIV, § 198. 

§ 488, No Error or Defect to Be Regarded Unless It Affect Substantial 
Rights. — The Court shall, in every stage of action, disregard any error or de- 
fect in the pleadings or proceedings, which shall not affect the substantial rights 
of the adverse party ; and no judgment shall be reversed or affected by reason of 
such error or defect. 

Civ. P. '22, § 439 ; Civ. P. '12, § 227 ; Civ. P. '02, § 197 ; 1870, XIV, § 199. 

§ 489. Supplemental Complaint, Answer, and Reply. — The plaintiff and 
defendant, respectively, may be allowed, on motion, to make a supplemental 
complaint, answer, or reply, alleging facts material to the case occurring after 
the former complaint, answer, or reply, or of which the party was ignorant 
when his former, pleading was made, and either party may, by leave of the 
Court, in any pending or future action, set up by a supplemental pleading the 
judgment or decree of any Court of competent jurisdiction rendered since the 
commencement of such action, determining the matters in controversy in said 
action, or any part thereof ; and if said judgment be set up by the plaintiff, the 
same shall be without prejudice to any provisional remedy theretofore issued, 
or other proceedings had in said action on his behalf. 

Civ. P. '22, § 440 ; Civ. P. '12, § 228 ; Civ. P. '02, § 198 ; 1870, XIV, § 200. 



§ 490 Code of Civil Peoceduee 134 

TITLE 7 

Provisional Remedies in Civil Action 

Chaptee 1. Arrest and Bail, § 490. 

Chaptee 2. Attachment, § 518. 

Chaptee 3. Claim and Delivery, § 543. 

Chaptee 4. Injunction, § 556. 

Chapter 5. Receivership and Other Provisional Remedies, § 575. 



CHAPTER 1 

Arrest and Bail 

490. Code Provisions Exclusive Method. 501-3. Povi^er and Liability of Bail. 

491. Grounds for Arrest. 504. Undertaking of the Bail. 
492-3-495. Order for Arrest. 505. New Bail. 

494. Security by Plaintiff. 506-8. Qualification, Justification and Al- 

496-7. Making Arrest. lowance of Bail. 

498-9. Bail by Defendant. 509-12. Deposit in Lieu of Bail. 

500. Surrender of Defendant. 513-15. Liability of Sheriff. 

516-17. Motion by Arrested Defendant. 

§ 490. No Person to Be Arrested in Civil Action, Except as Prescribed. — 

No person shall be arrested in a civil action, except as prescribed by this Code of 
Procedure ; but the same shall not apply to proceedings for contempt. 
Civ. P. '22, § 441 ; Civ. P. '12, § 229 ; Civ. P. '02, § 199 ; 1870, XIV, § 201. 

§ 491. Arrest in Civil Actions in What Cases. — The defendant may be ar- 
rested, as hereinafter prescribed, in the following cases : 

(1) In an action for money received, or property embezzled or fraudulently 
misapplied, by a public officer, or by an attorney, solicitor, or counsellor, or by 
an officer or agent of a corporation or banking association, in the course of his 
employment as such, or by any factor, agent, broker, or other person in a 
fiduciary capacity, or for any misconduct or neglect in office, or in a profes- 
sional employment. 

(2) In an action to recover the possession of personal property fraudulently 
detained, or where the property, or any part thereof, has been fraudulently con- 
cealed, removed, or disposed of, so that it cannot be found or taken by the 
Sheriff or Constable, and with intent that it should not be so found or taken, or 
with intent to deprive the plaintiff of the benefit thereof. 

(3) When the defendant has been guilty of a fraud in contracting the debt, 
or incurring the obligation for which the action is brought, or in concealing 
or disposing of the property for the taking, detention, or conversion of which 
the action is brought, or when the action is brought to recover damages for fraud 
or deceit. 

(4) When the defendant has removed or disposed of his property, or is about 
to do so, with intent to defraud his creditors. But no female shall be arrested in 
any action. 

(5) Whenever a person domiciled in this State, indebted by bond, note, or 
otherwise, is about to remove or abscond from the limits of this State, and the 
said debt is not yet due, but payable at some future date, it shall and may be 
lawful for the obligee, payee, or holder of said demand, or his assignee, or en- 
dorsee, as the case may be, upon swearing that such person is indebted to him, 
and that the demand is just and owing, but not yet due, and that the debtor is 
about to abscond or remove without the limits of this State, and that such cred- 



135 Code of Civil Procedure § 492 

itor was not aware that the debtor had any intention to remove from the State at 
the time when the original contract was made, or at the time of such assign- 
ment, or endorsement, as the case may be, to commence an action by issuing a 
summons and complaint and shall have power to arrest and hold to bail in such 
manner as is now prescribed in this Chapter in cases of debts actually due. 

(6) In an action for the recovery of damages in a cause of action not arising 
out of contract, when the defendant is a non-resident of the State or is about to 
remove therefrom, or when the action is for an injury to person or character, or 
for injury or for wrongfully taking, detaining or converting property. 

Civ. P. '22, § 442 ; Civ. P. '12, § 230 ; Civ. P. '02, § 200 ; 1870, XIV, § 202. 

§ 492. Order for Arrest — By Whom to Be Made. — An order for the arrest 
of the defendant must be obtained from a Judge, Magistrate, or Clerk of the 
Court, in which or before whom the action is brought. 

Civ. P. '22, § 443 ; Civ. P. '12, § 231 ; Civ. P. '02, § 201 ; 1870, XIV, 203. 

§ 493. Affidavit to Obtain Order for Arrest. — The order may be made where 
it shall appear to the proper officer by the affidavit of the plaintiff, or of any 
other person, that a sufficient cause of action exists, and that the case, from the 
facts stated, is one of those mentioned in Section 442. 

Civ. P. '22, § 444 ; Civ. P. '12, § 232 ; Civ. P. '02, 202 ; 1870, XIV, 204. 

§ 494. Security by Plaintiff Before Obtaining Order for Arrest. — Before 
making the order, the Judge or other officer, shall require a w^ritten undertak- 
ing on the part of the plaintiff, with or without sureties, to the effect that, if the 
defendant recover judgment, the plaintiff will pay all costs that may be awarded 
to the defendant and all damages which he may sustain by reason of the arrest, 
not exceeding the sum specified in the undertaking, which shall be at least one 
hundred dollars. If the undertaking be executed by the plaintiff, without sure- 
ties, he shall annex thereto an affidavit that he is a resident and householder or 
freeholder within the State, and worth double the sum specified in the under- 
taking, over all his debts and liabilities. 

Civ. P. '22, § 445 ; Civ. P. '12, § 233 ; Civ. P. '02, § 203 ; 1870, XIV, § 205. 

§ 495. Order for Arrest — When it May Be Made, and Its Form. — The or- 
der may be made to accompany the summons, or at any time afterwards before 
judgment. It shall require the Sheriff or Constable of the county where the de- 
fendant may be found forthwith to arrest him, and hold him to bail in a speci- 
fied sum, and to return the order, at a place and time therein mentioned, to the 
plaintiff or attorney by whom it shall be subscribed or endorsed. But said order 
of arrest shall be of no avail, and shall be vacated or set aside, on motion, unless 
the same is served upon the defendant, as provided by law, before the docket- 
ing of any judgment in the action ; and the defendant shall have twenty days, 
after the service of the order of arrest, in which to answer the complaint. 

Civ. P. '22, § 446 ; Civ. P. '12, § 234 ; Civ. P. '02, § 204 ; 1870, XIV, § 206. 

§ 496. Original Affidavit and Order Delivered to Sheriff, and Copy to De- 
fendant. — -The affidavit and order of arrest shall be delivered to the Sheriff or 
Constable, who, upon arresting the defendant, shall deliver to him a copy thereof. 

Civ. P. '22, § 447 ; Civ. P. '12, § 235 ; Civ. P. "02, § 205 ; 1870, XIV, § 207. 

§ 497. Arrest — How Made. — The Sheriff or Constable shall execute the 
order by arresting the defendant and keeping him in custody until discharged 
by law, and may call the power of the county to his aid in the execution of the 
arrest, as in case of process. 

Civ. P. '22, § 448 ; Civ. P. '12, § 236 ; Civ. P. '02, § 206 ; 1870, XIV, § 208. 



§ 498 Code of Civil Procedure 136 

§ 498. Defendant to Be Discharged on Giving Bail or Making a Deposit. — 

The defendant, at any time before execution, shall be discharged from the ar- 
rest, either upon giving bail or upon depositing the amount mentioned in the 
order of arrest, as provided in this Chapter, or he may be discharged under 
provisions of Sections 855-861 inclusive, of Code of Procedure 1932. 

Civ. P. '22, § 449 ; Civ. P. '12, § 237 ; Civ. P. '02, § 207 ; 1870, XIV, § 209. 

§ 499. Bail — How Given. — The defendant may give bail by causing a v^rit- 
ten undertaking to be executed by two or more sufficient bail, stating their 
places of residence and occupations, to the effect that the defendant shall, at all 
times, render himself amenable to the process of the Court, during the pendency 
of the action, and to such as may be issued to enforce the judgment therein ; or 
if he be arrested for the cause mentioned in the second subdivision of Section 
491, by an undertaking to the same effect as that provided by Section 549. 

Civ. P. '22, § 450 ; Civ. P. '12, § 238 ; Civ. P. '02, § 208 ; 1870, XIV, § 210. 

§ 500. Surrender of Defendant. — ^At any time before a failure to comply 
v^ith the undertaking, the bail may surrender the defendant in their exonera- 
tion, or he may surrender himself to the Sheriff' of the county where he was ar- 
rested, in the following manner: 

Civ. P. '22, § 451 ; Civ. P. '12, § 239 ; Civ. P. '02, § 209 ; 1870, XIV, § 211. 

(1) A certified copy of the undertaking of the bail shall be delivered to the 
Sheriff or Constable, who shall, by a certificate in writing, acknowledge the sur- 
render. 

(2) Upon the production of a copj^ of the undertaking and Sheriff's or Con- 
stable's certificate, a Judge or Clerk of the Court may, upon notice to the plain- 
tiff of eight days, with a copy of the certificate, order that the bail be exonerated ; 
and on filing the order and papers used on said application, they shall be 
exonerated accordingly. But this Section shall not apply to an arrest for cause 
mentioned in Subdivision 2 of Section 491, so as to discharge the bail from an 
undertaking given to the effect provided by Section 549. 

§ 501. The Bail May Themselves, or in Writing Authorize Arrest of De- 
fendant^ — When. — For the purpose of surrendering the defendant, the bail, at 
any time or place, before they are finally charged, may themselves arrest him, 
or by a written authority, endorsed on a certified copy of the undertaking, may 
empower any person of suitable age and discretion to do so. 

Civ. P. '22, § 452 ; Civ. P. '12, § 240 ; Civ. P. '02, § 210 ; 1870, XIV, § 212. 

§ 502. Bail — How Proceeded Against. — In case of failure to comply with 
the undertaking, the bail may be proceeded against by an action only. 

Civ. P. '22, § 453 ; Civ. P. '12, § 241 ; Civ. P. '02, § 211 ; 1870, XIV, § 213. 

§ 503. Bail — How Exonerated. — The bail may be exonerated, either by the 
death of the defendant, or his imprisonment in a State prison, or by his legal 
discharge from the obligation to render himself amenable to the process, or by 
his surrender to the Sheriff or Constable of the county where he was arrested, 
in execution thereof, within twenty days after the commencement of the ac- 
tion against the bail, or within such further time as may be granted by the 
Court. 

Civ. P. '22, § 454 ; Civ. P. '12, § 242 ; Civ. P. '02, § 212 ; 1870, XIV, § 214. 

§ 504. Delivery of Undertaking of Bail to Plaintiff, and Its Acceptance or 
Rejection by Him. — Within the time limited for that purpose, the Sheriff or 
Constable shall deliver the order of arrest to the plaintiff, or attorney by whom 
it is subscribed, with his return endorsed, and a certified copy of the undertak- 



137 Code of Civil Procedure § 505 

ing of the bail. The plaintiff, within ten days thereafter, may serve upon the 
Sheriff or Constable a notice that he does not accept the bail, or he shall be 
deemed to have accepted it, and the Sheriff or Constable shall be exonerated 
from liability. 

Civ. P. '22, § 455 ; Civ. P. '12, § 243 ; Civ. P. '02, § 213 ; 1870, XIV, § 215. 

§ 505. Notice of Justification — New Bail. — On the receipt of such notice, 
the Sheriff or Constable, or defendant, may, within ten days thereafter, give to 
the plaintiff or attorney by whom the order of arrest is subscribed, notice of the 
justification of the same or other bail (specifying the places of residence and oc- 
cupation of the latter) before a Judge or Clerk of the Court, at a specified time 
and place; the time to be not less than five nor more than ten days thereafter. 
In case other bail be given, there shall be a new undertaking in the form pre- 
scribed Section 450. 

Civ. P. '22, § 456 ; Civ. P. '12, § 244 ; Civ. P. '02, § 214 ; 1870, XIV, § 216. 

§ 506. Qualification of Bail. — The qualification of bail must be as follows : 

(1) Each of them must be a resident and householder, or freeholder, within 
the State. 

(2) They must each be worth the amount specified in the order of arrest, ex- 
clusive of property exempt from execution; but the Judge or Clerk of the Court, 
on justification, may allow more than two bail to justify severally in amounts 
less than that expressed in the order, if the whole justification be equivalent to 
that of two sufficient bail. 

Civ. P. '22, § 457 ; Civ. P. '12, § 245 ; Civ. P. '02, § 215 ; 1870, XIV, § 217. 

§ 507. Justification of Bail. — For the purpose of justification, each of the 
bail shall attend before the Judge or Clerk of the Court at the time and place 
mentioned in the notice, and may be examined, on oath, on the part of the plain- 
tiff, touching his sufficiency, in such manner as the Judge or Clerk of the Court, 
in his discretion, may think proper. The examination shall be reduced to writ- 
ing, and subscribed by the bail, if required by the plaintiff. 

Civ. P. '22, § 458 ; Civ. P. '12, § 246 ; Civ. P. '02, § 216 ; 1870, XIV, § 218. 

§ 508. Allowance of Bail. — If the Judge or Clerk of the Court find the 
bail sufficient, he shall annex the examination to the undertaking, endorse his 
allowance thereon, and cause them to be filed in the office of the Clerk ; and the 
Sheriff shall thereupon, be exonerated from liability. 

Civ. P. '22, § 459 ; Civ. P. '12, § 247 ; Civ. P. '02, § 217 ; 1870, XIV, § 219. 

§ 509. Deposit in Lieu of Bail. — The defendant may, at the time of his 
arrest, instead of giving bail, deposit with the Sheriff or Constable the amount 
mentioned in the order. The Sheriff shall thereupon give the defendant a certi- 
ficate of the deposit, and the defendant shall be dischargd out of custody. 

Civ. P. '22, § 460 ; Civ. P. '12, § 248 ; Civ. P. '02, § 218 ; 1870, XIV, § 220. 

§ 510. Payment of Deposit Into Court. — The Sheriff or Constable shall, 
within four days after the deposit, pay the same into Court and shall take from 
the officer receiving the same two certificates of such payment, the one of which 
he shall deliver to the plaintiff, and the other to the defendant. For any default 
in making such payment, the same proceedings may be had on the official bond 
of the Sheriff or Constable, to collect the sum deposited, as in other cases of 
delinquency. 

Civ. P. '22, § 461 ; Civ. P. '12, § 249 ; Civ. P. '02, § 219 ; 1870, XIV, § 221. 

§ 511. Substituting Bail for Deposit. — If money be deposited, as provided 
in the last two Sections, bail may be given and justified upon notice, as prescribed 



§ 512 Code of Civil Procedure 138 

in Section 505, any time before judgment; and thereupon the Judge, before 
whom the justification is had, shall direct, in the order of allowance, that the 
money deposited be refunded by the Sheriff or Constable to the defendant, and 
it shall be refunded accordingly. 

Civ. P. '22, § 462 ; Civ. P. '12, § 250 ; Civ. P. '02, § 220 ; 1870, XIV, § 222. 

§ 512. Deposit — How Disposed of After Judgment in the Action. — ^Where 
money shall have been so deposited, if it remain on deposit at the time of an 
order or judgment for the payment of money to the plaintiff, the Clerk shall, 
under the direction of the Court, apply the same to the satisfaction thereof, and, 
after satisfying the judgment, shall refund the surplus, if any, to the defendant. 
If the judgment be in favor of the defendant, the Clerk shall refund to him 
the whole sum deposited and remaining unapplied. 

Civ. P. '22, § 463 ; Civ. P. '12, § 251 ; Civ. P. '02, 221 ; 1870, XIV, § 223. 

§ 513. Sheriff — When Liability as Bail. — If, after being arrested, the de- 
fendent escape or be rescued, or bail be not given or justified, or a deposit be 
not made instead thereof, the Sheriff or Constable shall himself be liable as bail. 
But he may discharge himself from such liability by the giving and justifica- 
tion of bail, as provided in Sections 505, 506, 507 and 508, at any time before 
process against the person of the defendant to enforce an order or judgment in 
the action. 

Civ. P. '22, § 464 ; Civ. P. '12, § 252 ; Civ. P. '02, § 222 ; 1870, XIV, § 224. 

§ 514. Proceeding's on Judgment Against Sheriff.— If a judgment be re- 
covered against the Sheriff or Constable, upon his liability as bail, and an exe- 
cution thereon be returned unsatisfied, in whole or in part, the same proceed- 
ings may be had on the official bond of the Sheriff or Constable, to collect the 
deficiency, as in other cases of delinquency. 
• Civ. P. '22, § 465 ; Civ. P. '12, § 253 ; Civ. P. '02, § 223 ; 1870, XIV, § 225. 

§ 515. Bail Liable to Sheriff. — The bail taken upon the arrest shall, unless 
they justify, or other bail be given or justified, be liable to the Sheriff or Con- 
stable by action for damages which he may sustain by reason of such omissioji. 

Civ. P. '22, § 466 ; Civ. P. '12, § 254 ; Civ. P. '02, § 224 ; 1870, XIV, § 226. 

§ 516. Vacating Order of Arrest or Reducing Bail. — A defendant arrested 
may, at any time before judgment, apply, on motion, to vacate the ordfer of 
arrest, or to reduce the amount of bail. 

Civ. P. '22, § 467 ; Civ. P. '12, § 255 ; Civ. P. '02, § 225 ; 1870, XIV, § 227. 

§ 517. Afl&davits on Motion to Vacate Order of Arrest or Reduce Bail.— -If 

the motion be made upon affidavits on the part of the defendant, but not other- 
wise, the plaintiff may oppose the same by affidavits, or other proofs, in addition 
to those on which the order of arrest was made. 

Civ. P. '22, § 468 ; Civ. P. '12, § 256 ; Civ. P. '02, § 226 ; 1870, XIV, § 228. 



139 



Code of Civil Procedure 



§ 518 



CHAPTER 2 

Attachment 



518. Foreign Corporations, Non-residents 

or Absconding Defendants. 
519-20-522. Warrant of Attachment. 
521. Security. 
523. Property Attached. 
524^5. Sheriff's Duties as to Property 
Seized. 

526. Claim of Third Persons. 

527. When Debt not Due. 

528. Shares in Corporations, etc. 

529. Property Incapable of Manual De- 
livery. 

530. Certificate of Defendant's Interest. 



531. Satisfaction of Judgment. 

532. Prosecution of Action in which At- 
tachment Issued. 

533. Bond to 'Sheriff. 

534. Return of Property to Defendant. 

535. Defendant's Undertaking. 

536. Return of AVarrant by Sheriff. 

537. Action for Purchase Money. 

538. Undertaking. 

539. Making of Attachment. 

540. Appraisement. 

541. Trial by Jury. 

542. Form and Pi'ocedure. 



§ 518. Property of Foreign Corporations, and of Non-Resident, Absconding 
or Concealed Defendants, May Be Attached. — In any action arising for the re- 
covery of money, or for the recovery of property, whether real or personal, and 
damages for the wrongful conversion and detention of personal property, or an 
action for the recovery of damages for injury done to either person or property, 
or against a corporation created by or under the laws of any other State, govern- 
ment or country, or against a defendant who is not a resident of this State, or 
against the master, captain or agent of ny sailing vessel entering any of the 
ports of this State for pilotage services rendered such vessel, or against a de- 
fendant who has absconded or concealed himself, or whenever any person or 
corporation is about to remove any of his or its property, from this State, or 
has assigned, disposed of, or secreted, or is about to assign, dispose of, or 
secrete, any of his or its property, with intent to defraud creditors, as herein- 
after mentioned, the plaintiff, at the time of issuing the summons, or any time 
afterwards, may have the property of such defendant or corporation attached, 
in the manner hereinafter prescribed, as a security for the satisfaction of such 
judgment as the plaintiff may recover; and for the purposes of this Section an 
action shall be deemed commenced when the summons is issued: Provided, how- 
ever. That personal service of such summons shall be made or publication there- 
of commenced within thirty days. 

Civ. P. '22. § 500 ; Civ. P. '12, § 279 ; Civ. P. '02, § 248 ; 1870, XIV, § 250 ; 1879, XVII, 
23 ; 1897. XXII, 450. 

§ 519. Attachment — By Whom Granted. — A warrant of attachment must 
be obtained from a Judge, or Clerk of the Court, or Magistrate, in which or be- 
fore whom the action is brought, or from a Circuit Judge. 

Civ. P. '22, § 501 ; Civ. P. '12, § 280 ; Civ. P. '02, § 249 ; 1870, XIV, § 251. 

§ 520. In What Cases Attachments May Be Issued — Affidavit to Be Filed. 

— The warrant may be issued whenever it shall appear by affidavit that a cause 
of action exists against such defendant, specifying the amount of the claim and 
the grounds thereof, and that the defendant is either a foreign corporation or 
not a resident of this State, or that the defendant is the master, captain, or 
agent of any sailing vessel entering any of the ports of this State, and is about 
to take such vessel out of any port of this State, without paying the pilotage fees 
provided by law, or that the defendant has departed from the State with intent 
to defraud his or its creditors, or to avoid service of a summons, or keeps him- 
self concealed therein with the like intent, or that such corporation or person 
has removed, or is about to remove, any of his or its property from this State, 
with intent to defraud his or its creditors, or has assigned, disposed of or 



§ 521 Code of Civil Procedure 140 

secreted, or is about to assign, dispose of or secrete, any of his or its property 
with the like intent, whether such defendant be a resident of this State or not. 
It shall be the duty of the plaintiff procuring such warrant at the time of the 
issuing thereof, to cause the affidavits on which the same was granted to be filed 
in the office of the Clerk of the Court of Common Pleas, or with the Magistrate, 
in which or before whom the action is to be tried, within forty-eight hours after 
the issuance of the attachment. He shall also cause copies thereof to be served 
on the defendant with the summons, if he can be found within the county; 
Provided, however, That in cases where the defendant is the master, captain or 
agent of any vessel entering any of the ports of this State, it shall only be neces- 
say that the affidavit show that a cause of action exists against such defendant 
for pilotage services, specifying the amount of the claim and the grounds there- 
of, and that the defendant is about to take such vessel out of any port of this 
State, and refuse to pay or has not paid the fees provided by law for such pilot- 
age services. 

Civ. P. '22, § 502 ; Civ. P. '12, § 281 ; Civ. P. '02, § 250 ; 1870, XIV, 252 ; 1897 ; XXII, 
451; 1899, XXIII, 31. 

§ 521. Security on Obtaining Attachment. — Before issuing the warrant, 
the Judge, Clerk, or Magistrate shall require a written undertaking, on the 
part of the plaintiff, with sufficient surety, to the effect that if the defendant 
recovered judgment, or the attachment be set aside by order of the Court, the 
plaintiff will pay all costs that may be awarded to the defendant, and all damages 
which he may sustain by reason of the attachment, not exceeding the sum speci- 
fied in the undertaking, which shall be at least two hundred and fifty dollars, 
except in case of a warrant issued by a Magistrate, when it shall be at least 
twenty-five dollars. 

Civ. P. '22, § 503 ; Civ. P. '12, § 282 ; Civ. P. '02, § 251 ; 1870, XIV, § 253. 

§ 522. Attachment — To Whom Directed and What to Kequire. — The war- 
rant shall be directed to any Sheriff or Constable of any county in which prop- 
erty of such defendant may be, and shall require him to attach and safely keep 
all the property of such defendant within his county, or so much thereof as may 
be sufficient to satisfy the plaintiff's demand, together with costs and expenses, 
the amount of which must be stated in conformity with the complaint, together 
with costs and expenses. Several warrants may be issued at the same time to the 
Sheriffs or Constables of different counties. 

Civ. P. '22, § 504 ; Civ. P. '12, § 283 ; Civ. P. '02, § 252 ; 1870, XIV, § 254. 

§ 523, Property to Be Attached. — The Sheriff or Constable to whom such 
warrant is directed and delivered shall immediately attach all the real estate of 
such debtor, and all his personal estate, including money and bank notes, except 
such real and personal estate as is exempt from attachment, levy, or sale, by the 
Constitution, and shall take into his custody all books of account, vouchers and 
papers relating to the property, debts, credits, and effects of such debtor, to- 
gether with all evidences of his title to real estate, which he shall safely keep, to 
be disposed of as hereinafter directed. When real estate is attached, a true and 
attested copy of such attachment, together with a description of the real estate 
attached, shall be, by the officer serving the same, delivered to the party whose 
real estate is attached, or left at his last and usual place of abode ; and the of- 
ficer making such service shall also leave a true and attested copy of such at- 
tachment, together with a description of the real estate so attached, in the of- 
fice where, by law, a deed of such estate is required to be recorded ; and, if the 
party whose estate is attached does not reside in this State, then such copy shall 



141 Code of Civil Procedure § 524 

be delivered to his tenant, agent, or attorney, if any be known ; and, if no such 
agent, tenant, or attorney be known, then a copy of such warrant of attach- 
ment, with the officer's return thereon lodged in the office where, by law a deed 
of such real estate ought to be recorded, shall be deemed sufficient service. It 
shall be the duty of the Clerk or Register of the office wherein said warrant of 
attachment is required to be lodged, to receive the same, and enter in a book 
kept for that purpose the names of the parties, the date of the warrant of at- 
tachment, the sum demanded, and the officer's return thereon. Said attachment 
shall be a lien subject to all prior liens, and bind the real estate attached from 
the date of lodgment : Provided, That all attachments lodged upon the same day 
shall take rank together. 

Civ. P. '22, § 505 ; Civ. P. '12, § 284 ; Civ. P. '02, § 253 ; 1870, XIV, § 255. 

§ 524. Sheriff's Duties in Case of Seizure. — He shall, immediately on mak- 
ing such seizure, with the assistance of two disinterested freeholders, make a 
just and true inventory of all the property so seized, and of the books, vouch- 
ers, and papers taken into custody, stating therein the estimated value of the 
several articles of personal property, and enumerating such of them as are 
perishable, which inventory, after being signed by the Sheriff and appraisers, 
shall, within ten days after such seizure, be returned to the officer who issued 
the warrant ; and the Sheriff or Constable shall, under the direction of such of- 
ficer, collect, receive, and take into his possession, all debts, credits, and effects 
of such debtor, and commence such suits, and take such legal proceedings, 
either in his own name or in the name of such debtor, as may be necessary for 
that purpose, prosecute and discontinue the same at such times, and on such 
terms, as the Court may direct. The property so seized, or the proceeds of such 
as shall have been sold and debts collected, shall be kept to answer any judg- 
ment which may be obtained in such action. 

Civ. P. '22, § 506 ; Civ. P. '12, § 285 ; Civ. P. '02, § 254 ; 1870, XIV, § 256. 

§ 525. As to Perishable Property Seized. — If any of the property so seized 

be perishable, the Sheriff shall sell the same at public auction, under order of 

the Court or of a Judge thereof, and shall retain in his hands the proceeds of 

such sale, after deducting his expenses, to be allowed by such Court or Judge, 

which proceeds shall be disposed of in the same manner as the property so sold 

would have been if it had remained unsold. 

Civ. P. '22, § 507 ; Civ. P. '12, § 286 ; Civ. P. '02, § 255 ; 1870, XIV, § 257 ; 1883, XVIII, 
491. 

§ 526. Claim of Third Persons — Proceedings on. — If the person in whose 
possession such property shall be attached shall appear at the return of the writ 
and file his answer thereto, and deny the possession or control of any property 
belonging to the defendant, or claim the money, lands, goods and chattels, debts 
and books of account as creditor in possession, or in his own right, or in the right 
of some third person, or if any of the said property be claimed by any other 
person than such defendant, then, if the plaintiff be satisfied therewith, the 
party in possession shall be dismissed and the plaintiff may pay the cost of his 
action. But if the plaintiff shall contest the said return or the claim of said third 
person, an issue shall be made up under the direction of the Judge to try the 
question, and the party that shall prevail in said issue shall recover the costs 
of such proceeding of the opposite party, and judgment shall be given accord- 
ingly. If the party in possession, or the third person claiming the property, as 
the case may be, resides in a different county from that in which the action is 
brought, and an issue be made up between him and the plaintiff, the action 



§ 527 Code of Civil Procedure 142 

shall be tried in the county where the party in possession resides. In case the 
property is claimed by a third person, the plaintiff shall execute to such person 
the same undertaking that he is now required to give under Section 521 ; the 
said undertaking to be executed within ten (10) days after notice of such 
claim. 

Civ. P. '22, § 508 ; Civ. P. '12, § 287 ; Civ. P. 02, § 255a ; 1883, XVIII, 491. 

§ 527. As to Attachment When Debt Is Not Due. — Whenever a debt is not 
yet due, and it appears to the satisfaction of a Circuit Judge, the Clerk of the 
Court of Common Pleas, or Magistrate, by affidavit, that the debtor has de- 
parted from the State with intent to defraud his creditors, or to avoid the serv- 
ice of a summons, or keep himself concealed therein with a like intent, or that 
such person has removed or is about to remove any of his property from this 
State with intent to defraud his creditors, or has assigned, disposed of or 
secreted, or is about to assign, dispose of or secrete, any of his property with 
like intent, it shall be lawful for the plaintiff forthwith to institute suit upon 
such debt or cause of action, and for the said Circuit Judge, Clerk, or Magis- 
trate to issue his warrant of attachment as if said debt were then due and pay- 
able: Provided, That no judgment shall be had thereon till after the maturity 
of the debt : And Provided, further, That the plaintiff pay the costs in case the 
debtor pays the debt on or before its maturity. 

Civ. P. '22, § 509 ; Civ. P. '12, § 288 ; Civ. P. '02, § 255b ; 1883, XVIII, 491. 

§ 528. Shares in Corporations, Vessels, Etc. — The rights or shares which 
such defendant may have in any vessel, or in the stock of any association or 
corporation, together with the interest and profits thereon, and all other prop- 
erty in this State of such defendant, except that exempt from attachment by the 
Constitution, shall be liable to be attached and levied upon and sold to satisfy 
the judgment and execution. 

Civ. P. '22, § 510 ; Civ. P. '12, § 289 ; Civ. P. '02, § 256 ; 1870, XIV, § 258 ; 1883, XVIII, 
491. 

§ 529. Attachment — How Executed on Property Incapable of Manual De- 
livery. — The execution of the attachment upon any such rights, shares, or any 
debts or other property incapable of manual delivery to the Sheriff or Con- 
stable, shall be made by leaving a certijfied copy of the warrant of attachment 
with the president or other head of the association or corporation, or the secre- 
tary, cashier, or managing agent thereof, or with the debtor or individual hold- 
ing such property, with a notice showing the property levied on. 

Civ. P. '22, § 511 ; Civ. P. '12, § 290 ; Civ. P. '02, § 257 ; 1870, XIV, § 259. 

§ 530. Certificate of Defendant's Interest to Be Furnished. — Whenever the 
Sheriff or Constable shall, with a warrant of attachment or execution against 
the defendant, apply to such officer, debtor, or individual, for the purpose of at- 
taching or levying upon such property, such officer, debtor, or individual shall 
furnish him with a certificate, under his hand, designating the number of rights 
or shares of the defendant in the stock of such association or corporation, with 
any dividend or encumbrance thereon, or the amount and description of the 
property held by such association, corporation or individual, for the benefit of 
or debt owing to the defendant. If such officer, debtor, or individual refuses to 
do so, he may be required by the Court or Judge to attend before him, and be 
examined on oath concerning the same, and obedience to such order may be en- 
forced by attachment. 

Civ. P. '22, § 512 ; Civ. P. '12, § 291 ; Civ. P. '02, § 258 ; 1870, XIV, § 260. 



143 Code of Civil Procedure § 531 

§ 531. Judgment — How Satisfied. — In case judgment be entered for the 
plaintiff in such action, the Sheriff or Constable shall satisfy the same out of the 
property attached by him, if it shall be sufficient for that purpose. 

(1) By paying over to such plaintiff the proceeds of all sales of perishable 
property, and of any vessel or share or interest in any vessel, sold by him, or of 
any debts or credits collected by him, or so much as shall be necessary to satisfy 
such judgment. 

(2) If any balance remain due, and an execution shall have been issued on 
such judgment, he shall proceed to sell, under such execution, so much of the 
attached property, real or personal except as provided in Subdivision 4 of this 
Section, as may be necessary to satisfy the balance, if enough for that purpose 
shall remain in his hands ; and in case of the sale of any rights or shares in the 
stock of a corporation or association, the Sheriff or Constable shall execute to 
the purchaser a certificate of sale thereof, and the purchaser shall thereupon 
have all the rights and privileges in respect thereto which were had by such 
defendant. 

(3) If any of the attached property belonging to the defendant shall have 
passed out of the hands of the Sheriff or Constable without having been sold 
or converted into money, such Sheriff or Constable shall repossess himself of 
the same, and for that purpose shall have all the authority which he had to 
seize the same under the attachment ; and any person who shall wilfully conceal 
or withhold such property from the Sheriff or Constable, shall be liable to double 
damages, at the suit of the party injured. 

(4) Until the judgment against the defendant shall be paid, the Sheriff or 
Constable may proceed to collect the notes and other evidences of debt, and 
the debts that may have been seized or attached under the warrant of attach- 
ment, and to prosecute any bond he may have taken in the course of such pro- 
ceedings, and apply the proceeds thereof to the payment of the judgment. 

At the expiration of six months from the docketing of the judgment, the 
Court shall have power, upon the petition of the plaintiff accompanied by an 
affidavit, setting forth fully all the proceedings which have been had by the 
Sheriff or Constable since the service of the attachment, the property attached, 
and the disposition thereof, and also the affidavit of the Sheriff or Constable 
that he has used diligence and endeavored to collect the evidences of debt in his 
hands so attached, and that there remains uncollected of the same any part or 
portion thereof, to order the Sheriff or Constable to sell the same, upon such 
terms and in such manner as shall be deemed proper. Notice of such applica- 
tion shall be given to the defendant, or his attorney, if the defendant shall have 
appeared in the action. In the case the summons has not been personally served on 
the defendant, the Court shall make such rule or order, as to the service of notice 
and the time of service, as shall be deemed just. When the judgment and all 
costs of the proceedings shall have been paid, the Sheriff or Constable, upon 
reasonable demand, shall deliver over to the defendant the residue of the at- 
tached property, or the proceeds thereof. 

Civ. P. '22, § 513 ; Civ. P. '12, § 292 ; Civ. P. '02, § 259 ; 1870, XIV, § 261. 

§ 532. Prosecution of Action to Recover Notes, Etc., in Action in Which 
Attachment Issued. — The actions herein authorized to be brought by the 
Sheriff or Constable may be prosecuted by the plaintiff, or under his direction, 
upon the delivery by him to the Sheriff or Constable of an undertaking executed 
by two sufficient sureties, to the effect that the plaintiff will indemnify the 
Bheriff or Constable from all damages, costs, and expenses on account thereof 



§ 533 Code of Civil Peocedure 144 

not exceeding two hundred and fifty dollars in any one action. Such sureties 
shall, in all cases, when required by the Sheriff or Constable, justify by making 
an affidavit that each is a householder, and worth double the amount of the 
penalty of the bond, over and above all demands and liabilities. 

Civ. P. '22, § 514; Civ. P. '12, § 293; Civ. P. '02, § 260; 1870, XIV, § 262. 

§ 533. Bond to Sheriff on Attachment — How Disposed of on Judgment for 
Defendant. — If the foreign corporation, or absent or absconding or concealed 
defendant, recover judgment against the plaintiff in such action, any bond taken 
by the Sheriff or Constable, except such as are mentioned in the last Section, 
all the proceeds of sales and moneys collected by him, and all the property 
attached remaining in his hands, shall be delivered by him to the defendant, or 
his agent, on request, and the warrant shall be discharged and the property 
released therefrom. 

Civ. P. '22, § 515 ; Civ. P. '12, § 294 ; Civ. P. '02, § 261 ; 1870, XIV, § 263. 

§ 534. Discharge of Property and Return of Property or Proceeds on De- 
fendant's Appearance. — ^Whenever the defendant shall have appeared in 
such action, he may apply to the officer who issued the attachment, or to the 
Court, for an order to discharge the same; and, if the same be granted, all the 
proceeds of sales and moneys collected by him, and all property attached re- 
maining in his hands, shall be delivered or paid by him to the defendant or his 
agent, and released from the attachment. And where there is more than one de- 
fendant, and the several property of either of the defendants has been seized 
by virtue of the order of attachment, the defendant whose several property 
has been seized may apply to the officer who issued the attachment for relief 
under this Section. 

Civ. P. '22, § 516 ; Civ. P. '12, § 295 ; Civ. P. '02, § 262 ; 1870, XIV, § 264. 

§ 535. Undertaking on Part of Defendant. — Upon such application, the de- 
fendant shall deliver to the Court or officer an undertaking executed by at least 
two sureties, who are residents and freeholders or householders in the State, 
approved by such Court or officer, to the effect that such sureties will, on demand, 
pay to the plaintiff the amount of judgment that may be recovered against 
the defendant in the action, not exceeding the sum specified in the undertaking 
which shall be at least double the amount claimed by the plaintiff in his com- 
plaint. If it shall appear by affidavit that the property attached be less than the 
amount claimed by the plaintiff, the Court, or officer issuing the attachment, 
may order the same to be appraised, and the amount of the undertaking shall 
then be double the amount so appraised. And in all cases the defendant, or any 
person who establishes a right to the property attached, may move to discharge 
the attachment, as in the case of other provisional remedies. 

And where there is more than one defendant, and the several property of 
either of the defendants has been seized by virtue of the order of attachment, 
the defendant whose several property has been seized may deliver to the Court 
or officer an undertaking, in accordance with the provisions of this Section, to 
the effect that he will, on demand, pay to the plaintiff the amount of judgment 
that may be recovered against such defendant. And all the provisions of this 
Section applicable to such undertaking shall be applied thereto. 

Civ. P. '22, § 517 ; Civ. P. '12, § 296 ; Civ. P. '02, § 263 ; 1870, XIV, § 265. 

§ 536. When Sheriff to Return Attachment, With His Proceedings Thereon. 

— ^When the warrant shall be fully executed or discharged, the Sheriff or Con- 



145 Code of Civil Pkocedure § 537 

stable shall return the same, with his proceedings thereon, to the Court in which 
the action was brought. 

Civ. P. '22, § 518 ; Civ. P. '12, § 297 ; Civ. P. '02, § 264 ; 1870, XIV, § 266. 

§ 537. Attachment in Action for Purchase Money — Warrant — Issuance. — 

In an action arising for the recovery of the purchase money, which is past due, 
for any real or personal property, it shall be lawful for the plaintiff, at the time 
of the issuing of the summons, or any time afterwards, to cause the property 
of such defendant for which the purchase money is payable to be attached in the 
manner hereinafter prescribed as a security for the satisfaction of such judg- 
ment as the plaintiff may recover, and for the purposes of this Section an action 
shall be deemed commenced when the summons is issued. This warrant of at- 
tachment must be obtained from a Judge or Clerk of the Court, or Magistrate 
in which or before whom the action is brought, or from a Circuit Judge. The 
warrant of attachment may be issued whenever it shall appear by affidavit that 
a cause of action exists against such defendant, specifying the amount of the 
claims and the grounds thereof, that the same is due, and that the action is 
brought for the purchase money of real estate or personal property which has 
been sold to the defendant, and which he has refused or failed to pay. It shall 
be the duty of the plaintiff at the time of procuring such warrant of attachment 
to file the affidavit upon which the same is granted, in the office of the Clerk 
of Court of Common Pleas, or with the Magistrate in which or before whom 
the action is to be tried. 

Civ. P. '22. § .519 ; Civ. P. '12, § 298 ; 1904, XXIV, 452. 

§ 538. Undertaking — Direction. — Before issuing the warrant of attach- 
ment, the Judge, Clerk or Magistrate shall require a written undertaking on 
the part of the plaintiff, with sufficient surety to the effect that if the plaintiff 
shall fail to prove that the action is brought to recover the purchase money for 
the property which is about to be attached, or if the defendant recovers judgment, 
or the attachment be set aside by the order of the Court, the plaintiff will pay 
all cost that may be awarded to the defendant, and all damages which he may 
sustain by reason of the attachment, not exceeding the sum specified in the 
undertaking, which shall be at least two hundred and fifty dollars ($250.00), 
except in case of a warrant issued by a Magistrate, when it shall be at least 
twenty-five ($25.00). The warrants shall be directed to any Sheriff or Constable 
of any county in which the said property of such defendant may be, and shall 
plainly describe the same, and shall require such officer to attach and safely keep 
such property of the defendant, or so much thereof as may be sufficient to satis- 
fy plaintiff's demand, together with costs and expenses. 

Civ. P. '22, § 520 ; Civ. P. '12, § 299 ; 1904, XXIV, 452. 

§ 539. How Attachment Made.— The Sheriff or Constable to whom such 
warrant is directed and delivered shall immediately attach the real estate or 
personal property of the defendant which is described in the warrant, and hold 
the same until further order of the Court. When real estate is attached, a true 
and attested copy of such warrant shall be, by the officer serving the same, 
delivered to the defendant, or left at his last or usual place of residence, and the 
officer making such service shall also leave a true and attested copy of such 
warrant or attachment in the office where, by law, a deed of such estate is re- 
quired to be recorded, and if the party whose estate is attached does not reside in 
this State, then such copy shall be delivered to his tenant, agent or attorney, if 
any be known, and if no such agent, tenant or attorney be known, then a copy of 
such warrant of attachment, with the officer's return thereon, lodged in the 



§ 540 Code of Civil Procedure 146 

office where, by law, a deed of such real estate ouglit to be recorded, shall be 
deemed sufficient service. It shall be the duty of the Clerk or Register of the 
office wherein said warrant of attachment is required to be lodged, to receive 
the same and enter in a book kept for that purpose the names of the parties, 
the date of the warrant of attachment, the sum demanded, and the officer's re- 
turn thereon. Said attachment shall be a lien subject to all prior liens, and bind 
the real estate attached from the date of lodgment, and shall be a lien upon the 
personal property attached from the date of the levy thereon. 
Civ. P. '22, § 521 ; Civ. P. '12, § 300 ; 1904, XXIV, 452. 

§ 540. Appraisement. — Such further proceedings on the part of the Sheriff 
or Constable in reference to the appraisement of the personal property attached, 
or the sale of such personal property as may be perishable, shall be the same 
as now required by Sections 524 and 525, and such further proceedings in 
reference to the disposition of the bond given by the plaintiff in case of judgment 
for defendant, and the discharge of the attachment and return of property or 
its proceeds to defendant. And the undertaking on the defendant's part shall 
be the same as now required by Sections 533, 534 and 535, 

Civ. P. '22, § 522 ; Civ. P. '12, § 301 ; 1904, XXIV, 452. 

§ 541. Trial by Jury. — In all actions tried by a jury, where the plaintiff 
claims that the action is brought for the recovery of the purchase money for the 
property attached, if the jury find for the plaintiff they shall also state in their 
verdict whether or not the amount found is for the purchase money of the 
property attached; and in all cases tried by the Judge, if he decides in favor 
of the plaintiff he shall certify whether or not the debt so found by him is for the 
purchase money of the property seized under the warrant of attachment ; and 
in such cases he shall direct that the attached property shall be sold by the 
Sheriff or Constable, and the proceeds arising from such sale be applied in 
payment of the plaintiff's debt and cost, and if there should be a surplus left 
the same to be paid over to the defendant. 

Civ. P. '22, § 523 ; Civ. P. '12, § 302 ; 1904, XXIV, 452. 

§ 542. Form and Procedure in Attachment — 

(1) In all cases of attachments in this State the following forms, affidavits, 
and bond shall be sufficient, to wit : 

State of South Carolina, ) p . <? 



Plaintiff, 
against ) Affidavit. 



Defendant. 

Personally appeared before me. 

who on oath says : 

That is justly and truly indebted 

to in the sum of 

($ ) Dollars, 

and that is entitled to an attachment 

against .... . .upon the grounds : 



147 Code of Civil Procedure § 542 



Sworn to before me this the 

day of 19.. 



State of South Carolina, 
County of 



Court of, 



Plaintiff, 

against ) Bond. 



Defendant. 

We, principal, and 

surety, acknowledge ourselves bound unto the 

defendant in the sum of Dollars, 

subject to the following conditions : That the plaintiff is seeking an attachment 
against the defendant, which is now about to be sued out, returnable to the 
Court above named; now, if the plaintiff shall pay all damages that the de- 
fendant may sustain, and also all costs that may be incurred by him in conse- 
quence of the suing out such attachment, in the event that the plaintiff shall fail 
to recover in said case, then this bond to be void. 

Done this day of 19 ... . 

Signed, sealed and delivered in the \ (Seal) 

presence of : \ 
) (Seal) 

State of South Carolina, 
County of 



being first duly sworn, says : 

That he saw the above named plaintiff, 

and surety, sign, seal, and as their 

act and deed, deliver- the foregoing instrument for the uses and purposes there- 
in expressed, and that he with 

witnessed the execution thereof. 

Sworn to before this the 

day of 19 ... . 

(Seal) 



The foregoing bond filed and approved this day of 

19.... 



(2) When the above affidavit and bond is filed with the Clerk of Court of any 
County of this State or with the Magistrate, when the amount involved is with- 
in his jurisdiction, he shall issue his warrant of attachment in the following 
form : 



§ 543 Code of Civil Procedure 148 

South Carolina 



^ , f Attachment. 

County. 



To all and singular the Sheriffs and Constables of said State and County : 

You are hereby commanded to attach and seize 

or so much of the property of 

as will make the sum of dollars 

and all costs, and also to serve such summons as may be placed in your hands, 
and that you make return of this attachment, with your actings and doings en- 
tered thereon, to this Court. Hereof fail not. 

Witness my hand and seal this day of 19 ... . 

(L. S.) 

(3) Immediately upon the issuance of the warrant of attachment as pro- 
vided for in Subsection 2 of this Section the Sheriff or Constable shall execute 
same and the plaintiff shall, within ten days thereafter, if not served with the 
summons, file in the trial Court his complaint, and serve a copy on the de- 
fendant, not only stating his cause of action, but also the ground upon which 
he attaches, and said defendant shall have twenty days thereafter to answer 
same, if in the Court of Common Pleas, or appear if before a Magistrate. 

(4) The defendant in any proceedings hereunder may replevy and take the 
property back, as now provided by law under the attachment proceedings. 

(5) The grounds of attachment shall be only those now provided by law and 
may be contested as now provided by law. 

1929, XXXVI, 201. 

CHAPTER 3 

Claim and Delivery of Personal Property. 

543. Claim of Immediate Possession. 550. Defendant's Sureties. 

544. The Affidavit. 551. Qualification and Justification of 

545. Requisition to Sheriff. Sureties. 

546. Security by Plaintiff. 552. Taking Concealed Property. 

547. Exception to Sureties. 553. Custody of Property. 

548. Amount of Bond. 554. Claim by Third Person. 

549. Re-delivery to Defendant. 555. Notice and Affidavit. 

§ 543. Claim and Delivery of Personal Property. — The plaintiff, in an ac- 
tion to recover the possession of personal property, may, at the time of issuing 
the summons, or at any time before answer, claim the immediate delivery of 
such property, as provided in this Chapter. 

Civ. P. '22, § 469 ; Civ. P. '12, § 257 ; Civ. P. '02, § 227 ; 1870, XIV, § 229. 

§ 544. Affidavit and Its Requisites. — Where a delivery is claimed, an affi- 
davit must be made by the plaintiff, or by some one on his behalf, showing : 

(1) That the plaintiff is the owner of the property claimed (particularly de- 
scribing it), or is lawfully entitled to the possession thereof, by virtue of a 
special property therein, the facts in respect to which shall be set forth. 

(2) That the property is wongfully detained by the defendant. 

(3) The alleged cause of the detention thereof, according to his best knowl- 
edge, information and belief. 

(4) That the same has not been taken for a tax, assessment, or fine, pursuant 
to a Statute; or seized under an execution or attachment against the property 
of the plaintiff ; or, if so seized, that it is, by Statute, exempt from such seizure. 
And, 

(5) The actual value of the property. 

Civ. P. '22, § 470 ; Civ. P. '12, § 258 ; Civ. P. '02, § 228 ; 1870, XIV, § 230. 



149 Code of Civil Procedure § 545 

§ 545. Requisition to Sheriff to Take and Deliver Property. — The plaintiff 
may, thereupon, by endorsement, in writing, upon the affidavit, require the 
Sheriff of the county where the property claimed may be, to take the same from 
the defendant and deliver it to the plaintiff. 

Civ. P. '22, § 471 ; Civ. P. '12, § 259 ; Civ. P. '02, § 229 ; 1870, XIV, § 231. 

§ 546. Security by Plaintiff. — Upon the receipt of the affidavit and notice, 
with a written undertaking executed by one or more sufficient sureties, approved 
by the Sheriff, to the effect that they are bound in double the value of the prop- 
erty, as stated in the affidavit for the prosecution of the action, for the return 
of the property to the defendant, if return thereof be adjudged, and for the 
payment to him of such sum as may, for any cause, be recovered against the 
plaintiff, the Sheriff shall forthwith take the property described in the affidavit, 
if it be in the possession of the defendant or his agent, and retain it in his cus- 
tody. He shall also, without delay, serve on the defendant a copy of the affidavit, 
notice, and undertaking, by delivering the same to him personally, if he can 
be found, or to his agent, from whose possession the property is taken, or, if 
neither can be found, by leaving them at the usual place of abode of either, with 
some person of suitable age and discretion. In case the plaintiff does not execute 
the required undertaking, the party having possession of the property shall 
retain the same until the determination of the suit. 

Civ. P. '22, § 472 ; Civ. P. '12, § 260 ; Civ. P. '02, § 230 ; 1870, XIV, § 232 ; 1873, XV, 498. 

§ 547. Exception to Sureties. — The defandant may, within three days after 
the service of a copy of the affidavit and undertaking, give notice to the Sheriff 
that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be 
deemed to have waived all objections to them. When the defendant excepts, the 
sureties shall justify, on notice, in like manner as upon bail on arrest. And the 
Sheriff shall be responsible for the sufficiency of the sureties, until the objection 
to them is either waived, as above provided, or until they shall justify, or new 
sureties shall be substituted and justify. If the defendant except to the sureties, 
he cannot reclaim the property, as provided in the Section 549. 

Civ. P. '22, § 473 ; Civ. P. '12, § 261 ; Civ. P. '02, § 231 ; 1870, XIV, § 233. 

§ 548. Amount of Bond in Attachment and Claim and Delivery Proceed- 
ings Limited. — In actions in claim and delivery where the purpose is to collect 
a debt and in actions for the purchase price of any property where the same, 
or any part thereof, is attached, and in all actions where property is permitted 
to be attached to secure the payment of a debt claimed to be due, the under- 
taking required of the defendant shall in no case be in excess of double the 
amount of the debt claimed by the plaintiff to be due in the said action : Pro- 
vided, If there is an appeal, the Court from which any appeal is taken may 
increase the bond. 

1930, XXXVI, 1347. 

§ 549. Defendant — When Entitled to Re-Delivery. — At any time before the 
delivery of the property to the plaintiff, the defendant may, if he do not except 
to the sureties of the plaintiff, require the return thereof, upon giving to the 
Sheriff a written undertaking, executed by two or more sufficient sureties, to 
the effect that they are bound in double the value of the property, as stated in 
the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such 
delivery be adjudged, and for the payment to him of such sum as may, for any 
cause, be recovered against the defendant. If a return of the property be not 



§ 550 Code of Civil Procedure 150 

so required within three days after the taking and service of notice to the de- 
fendant, it shall be delivered to the plaintiff, except as provided in Section 554. 
Civ. P. '22, § 474 ; Civ. P. '12, § 262 ; Civ. P. '02, § 232 ; 1870, XIV, § 234. 

§ 550. Justification of Defendant's Siireties. — The defendant's sureties, up- 
on a notice to the plaintiff of not less than two or more than six days, shall justify 
before a Judge, Clerk of Court or Magistrate, in the same manner as upon bail 
on arrest. Upon such justification, the Sheriff shall deliver the property to the 
defendant. The Sheriff shall be responsible for the defendant's sureties until 
the}^ justify, or until justification is completed or expressly waived, and may 
retain the property until that time; but if they, or others in their place, fail to 
justify at the time and place appointed, he shall deliver the property to the 
plaintiff. 

Civ. P. '22, § 475 ; Civ. P. '12, § 263 ; Civ. P. '02, § 233 ; 1870, XIV, § 235. 

§ 551. Qualification and Justification of Sureties. — The qualifications of 
sureties and their justification shall be as are prescribed by Sections 506 and 
507 in respect to bail upon an order of arrest. 

Civ. P. '22, § 476 ; Civ. P. '12, § 264 ; Civ. P. '02, § 234 ; 1870, XIV, § 236. 

§ 552. Property — How Taken When Concealed in Building or Enclosure. — 

If the property, or any part thereof, be concealed in a building or enclosure, 
the Sheriff shall publicly demand its delivery. If it be not delivered, he shall 
cause the building or enclosure to be broken open, and take the property into his 
possession ; and if necessary, he may call to his aid the power of his county. 
Civ. P. '22, § 477 ; Civ. P. '12, § 265 ; Civ. P. '02, § 235 ; 1870, XIV, § 237. 

§ 553. Property — How Kept. — When the Sheriff shall have taken property, 
as in this Chapter provided, he shall keep it in a secure place, and deliver it to 
the party entitled thereto, upon receiving his lawful fees for taking, and his 
necessary expenses for keeping the same. 

Civ. P. '22, § 478 ; Civ. P. '12, § 266 ; Civ. P. '02, § 236 ; 1870, XIV, § 238. 

§ 554. Claim of Property by Third Person. — If the property taken be 
claimed by any other person than the defendant or his agent, and such person 
shall make affidavit of his title thereto, and right to the possession thereof, stating 
the grounds of such right and title, and serve the same upon the Sheriff, the 
Sheriff shall not be bound to keep the property, or deliver it to the plaintiff, 
unless the plaintiff, on demand of him or his agent, shall indemnify the Sheriff 
against such claim, by an undertaking, executed by two sufficient sureties, ac- 
companied by their affidavit that they are each worth double the value of the 
property, as specified in the affidavit of the plaintiff, and are freeholders and 
householders within this State. And no claim to such property, by any other 
person than the defendant or his agent, shall be valid against the Sheriff, unless 
made as aforesaid; and, notwithstanding such claim, when so made, he may 
retain the property a reasonable time to demand such indemnity. 

Civ. P. '22, § 479 ; Civ. P. '12, § 267 ; Civ. P. '02, § 237 ; 1870, XIV, § 239. 

§ 555. Notices and Affidavit — ^When and Where to be Filed. — The Sheriff 
shall file the notice and affidavit, with his proceedings thereon, with the Clerk 
of the Court in which the action is pending, within twenty days after taking 
the property mentioned therein. 

Civ. P. '22, § 480; Civ. P. '12, § 268; Civ. P. '02, § 238; 1870, XIV, § 240. 



151 



Code of Civil Procedure 



§ 556 



CHAPTER 4 
Injunction 

Article 1. General Provisions, § 556. 

Article 2. Injunctions to Abate Certain Nuisances, § 566. 



ARTICLE 1 
General Provisions 



556. Order of Injunction. 

557. Temporary Injunction. 

558. When Injunction Granted. 

559. Injunction After Answer. 

560. Execution or Judicial Sale. 



561. Security. 

562. Order to Show Cause. 

563. Injunction Suspending Business. 

564. Motion to Vacate or Modify. 

565. Affidavits. 



§ 556. Writ of Injunction Abolished, and Order Substituted. — An order 
of injunction may be made by the Court of Common Pleas in which the action 
is brought, or by a Judge thereof, and in the absence from the circuit, or in- 
ability from any cause, of a Judge thereof, by a Judge of any other circuit, or 
a Justice of the Supreme Court. And by any Probate Judges in the cases pro- 
vided in Section 190 of this Code of Procedure. 

Civ. P. '22, § 481 ; Civ. P. '12, § 269 ; Civ. P. '02, § 239 ; 1870, XIV, § 241. 

§ 557. Temporary Injunction — In What Cases Granted. — 

(1) Where it shall appear by the complaint that the plaintiff is entitled to 
the relief demanded, and such relief, or any part thereof, consists in restraining 
the commission or continuance of some act, the commission or continuance of 
which, during the litigation, would produce injury to the plaintiff; or, 

(2) When, during the litigation, it shall appear that the defendant is doing, 
or threatens, or is about to do, or procuring or suffering some act to be done, 
in violation of the plaintiff's rights respecting the subject of the action, and 
tending to render the judgment ineffectual, a temporary injunction may be 
granted to restrain such act. 

(3) And where, during the pendency of an action, it shall appear by affidavit 
that the defendant threatens or is about to remove or dispose of his property, 
with intent to defraud his creditors, a temporary injunction may be granted to 
restrain such removal or disposition. 

Civ. P. '22, § 482 ; Civ. P. '12, § 270 ; Civ. P. '02, § 240 ; 1870, XIV, § 242. 

§ 558. At What Time Injunction May Be Granted — Copy of Affidavit to 
Be Served. — The injunction may be granted at the time of commencing the 
action, or at any time afterwards, before judgment, upon its appearing satis- 
factorily to the Court or Judge, by the affidavit of the plaintiff or of any other 
person that sufficient grounds exist therefor. A copy of the affidavit must be 
served with the injunction. 

Civ. P. '22, § 483 ; Civ. P. '12, § 271 ; Civ. P. '02, § 241 ; 1870, XIV, § 243. 

§ 559. Injunction After Answer. — An injunction shall not be allowed after 
the defendant shall have answered, unless upon notice or upon an order to show 
cause; but in such case the defendant may be restrained until the decision of 
the Court or Judge granting or refusing the injunction. 

Civ. P. '22, § 484 ; Civ. P. '12, § 272 ; Civ. P. '02, § 242 ; 1870, XIV, § 244. 

§ 560. Regulations for Granting Injunctions to Stay Certain Sales. — An 

injunction to stay an execution or judicial sale shall not be allowed unless upon 



§ 561 Code of Civil Procedure 152 

notice of at least four days to the adverse party or to his attorney, unless the 
Court or Judge, before whom the application is made, shall prescribe a shorter 
time, nor shall a motion for such an injunction be heard less than five da^'s be- 
fore the time fixed for such sale, unless the Court or Judge, upon cause being 
shown, shall order otherwise. And in all cases the decision of the Court or Judge 
upon such a motion shall be filed with the Clerk of the Court for the county 
before the time fixed for such sale, otherwise the sale shall not be stayed : Pro- 
vided, however, That when an execution or judicial sale is stayed by injunction, 
the time of the existence of such stay shall not be deemed or taken to be a part 
of the time of the existence of the active energy of such execution, or a part of 
the time of the existence of the lien of any judgment or decree, whether such 
staj^ be obtained before or after the passage of this Section. 

Civ. P. '22, § 485 ; Civ. P. '12, § 273 ; Civ. P. '02, § 242a ; 1899, XXIII, § 43. 

§ 561. Security Upon Injunction — Damages — How Ascertained. — When no 
provision is made by Statute as to security upon an injunction, the Court or 
Judge shall require a written undertaking on the part of the plaintiff, with or 
without sureties, to the effect that the plaintiff will pay to the party enjoined 
such damages, not exceeding an amount to be specified, as he may sustain by 
reason of the injunction, if the Court shall finally decide that the plaintiff was 
not entitled thereto. The damages may be ascertained by a reference or other- 
wise, as the Court shall direct. 

Civ. P. '22, § 486 ; Civ. P. '12, § 274 ; Civ. P. '02, 243 ; 1870, XIV, § 245. 

§ 562. Order to Show Cause Why Injunction Should Not Be Granted. — 

If the Court or Judge deems it proper that the defendant, or any of several 
defendants, should be heard before granting the injunction, an order may be 
made, requiring cause to be shown, at a specified time and place, why the in- 
junction should not be granted; and the defendant may, in the meantime, be 
restrained. 

Civ. P. '22, § 487 ; Civ. P. '12, § 275 ; Civ. P. '02, § 244 ; 1870, XIV, § 246. 

§ 563. Security Upon Injunction to Suspend Business of Corporation. — 

An injunction to suspend the general and ordinary business of a corporation 
shall not be granted except by the Court or a Judge thereof. Nor shall it be 
granted without due notice of the application therefor, to the proper officers 
of the corporation, except where the State is a party to the proceeding, and 
except in proceedings to enforce the liability of stockholders in corporations 
and associations for banking purposes, as such proceedings are or shall be pro- 
vided by law, unless the plaintiff shall give a written undertaking, executed 
by two sufficient sureties, to be approved by the Court or Judge, to the effect 
that the plaintiff will pay all damages, not exceeding the sum to be mentioned 
in the undertaking, which such corporation may sustain by reason of the in- 
junction, if the Court shall finally decide that the plaintiff was not entitled there- 
to. The damages may be ascertained by a reference or otherwise, as the Court 
shall direct. 

Civ. P. '22, § 488 ; Civ. P. '12, § 276 ; Civ. P. '02, § 245 ; 1870, XIV, § 247. 

§ 564. Motion to Vacate or Modify Injunction. — If the injunction be grant- 
ed by the Court, or a Judge thereof, without notice, the defendant at any time 
before the trial, may apply, upon notice to the Court, or a Judge thereof, in 
which the action is brought, to vacate or modify the same. The application may 



153 Code of Civil Procedure § 565 

be made upon the complaints and the affidavits on which injunction was granted, 
or upon affidavits on the part of the defendant, with or without the answer. 

Civ. P. '22, § 489 ; Civ. P. '12, § 277 ; Civ. P. '02, § 246 ; 1870, XIV, § 248. 

§ 565. Affidavits on Motion. — If the application be made upon affidavits 
on the part of the defendant, but not otherwise, the plaintiff may oppose the 
same by affidavits or other proofs, in addition to those on which the injunction 
was granted. 

Civ. P. '22, § 490 ; Civ. P. '12, § 278 ; Civ. P. '02, § 247 ; 1870, XIV, § 249. 



ARTICLE 2 

Injunctions to Abate Certain Nuisances 

566. Place for Prostitution. 571. Officer's Duty after Conviction in 

567. Who may Sue. Criminal Case. 

568. Trial. 572. Release of Building. 

569. Violation of Injunction. 573. Notice to Owner. 

570. Abatement. 574. Immunity of Witness. 

§ 566. Use of Buildings or Places for Lewdness Declared a Nuisance. — 

Whosoever shall erect, establish, continue, maintain, use, own, occupy, lease, 
or re-lease any building, erection or place used for the purpose of lewdness, 
assignation, or prostitution in the State of South Carolina, is guilty of a nuis- 
ance, and the building, erection, or place, or the ground itself in or upon which 
such lewdness, assignation, or prostitution is conducted, permitted or carried 
on, continued, or exists, and the furniture, fixtures, musical instruments and 
movable property used in conducting or maintaining such nuisance, are also 
declared a nuisance, and shall be enjoined and abated as hereinafter provided. 
Civ. P. '22, § 491 : 1918. XXX. 814. 

§ 567. Attorney General Solicitor or Citizen may Bring Suit for Injunc- 
tion. — Whenever a nuisance is kept, maintained, or exists, as defined in this 
Article, the Attorney General of the State, or the Solicitor of the Judicial Dis- 
trict where such nuisance is kept, or any citizen of the State may maintain an 
action in equity in the name of the State, upon the relation of such Attorney 
General of the State, or Solicitor, or citizen, to perpetually enjoin said nuisance, 
the person or persons conducting or maintaining the same, and the owner or 
agent of the building or ground upon which said nuisance exists. In such action 
the Court, or the Judge in vacation, shall, upon the presentation of a petition 
therefor, alleging that the nuisance complained of exists, allow a temporary 
writ of injunction, without bond, if the existence of such nuisance shall be made 
to appear to the satisfaction of the Court or Judge by evidence in the form of 
affidavits, depositions, oral testimony, or otherwise, as the complainant may elect, 
unless the Court or Judge by previous order shall have directed the form and 
manner in which it shall be presented. Three days' notice in writing shall be 
given the defendant of the hearing of the application, and if then continued at 
his instance the writ as prayed shall be granted as a matter of course. When an 
injunction has been granted it shall be binding on the defendant throughout 
the State, and any violation of the provisions of injunction herein pro"vdded shall 
be a contempt as hereinafter provided. 

Civ. P. '22. § 492 ; 1918, XXX, 814. 

§ 568. Trial. — The action, when brought, shall be triable at the first term 
of Court, after due and timely ser^ace of the notice has been given, and in such 



§ 569 Code of Civil Procedure 154 

action evidence of the general reputation of the place shall be competent for the 
purpose of proving the existence of said nuisance. If the complaint is filed by a 
citizen or corporation, it shall not be dismissed, except upon a sworn statement 
made by the complainant and his or its attorney, setting forth the reason why 
the action should be dismissed, and the dismissal approved by the Attorney 
General of the State, or by said Solicitor, in writing or in open Court. If the 
Court is of the opinion that the action ought not to be dismissed, he may direct 
the Attorney General, or Solicitor, to prosecute said action to judgment, and if 
the action is continued more than one term of Court, any citizen of the State 
may be substituted for the complaining party, and prosecute said action to 
judgment. If the action is brought by a citizen or a corporation, and the Court 
finds there was no reasonable ground or cause for said action, the costs may 
be taxed to such citizen or corporation. 

Civ. P. '22, § 493 ; 1918, XXX, 815. 

§ 569. Violation of Injunction. — In case of the violation of any injunction 
granted under the provisions of this Article, the Court, or, in vacation, a Judge 
thereof, may summarily try and punish the offender. The proceedings shall be 
commenced by filing with the Clerk of the Court a complaint, under oath, setting 
out the alleged facts constituting such violation, upon which the Court or Judge 
shall cause a warrant to issue, under which the defendant shall be arrested. 
The trial may be had upon affidavits or either party may at any stage of the 
proceedings demand the production and oral examination of the witnesses. A 
party found guilty of contempt under the provisions of this Section shall be 
punished by a fine of not less than $200.00 nor more than $1,000.00, or by im- 
prisonment in the county jail or State Penitentiary not less than three months 
nor more than six months, or by both fine and imprisonment. 

Civ. P. '22, § 494 ; 1918, XXX, 815. 

§ 570. Abatement. — If the existence of the nuisance be established in an 
action, as provided in this Article, or in a criminal proceeding, an order of abate- 
ment shall be entered as part of the judgment in the case, which order shall 
direct the removal from the building or place of all fixtures, furniture, musical 
instruments, or movable property used in conducting the nuisance, and shall 
direct the sale thereof in the manner provided for the sale of chattels under exe- 
cution, and shall direct the effectual closing of the building or place against its 
use for any puriDose, and so keeping it closed for a period of one year, unless 
sooner released. If any person shall break and enter or use a building, erection, 
or place so directed to be closed, he shall be punished as for contempt, as pro- 
vided in the preceding Section. 

Civ. P. '22. § 495 ; 1918, XXX. 816. 

§ 571. When County Attorney or Solicitor to Enforce this Act. — In case 
the existence of such nuisance is established in a criminal proceeding in a Court 
not having equitable jurisdiction, it shall be the duty of the County Attorney 
or Solicitor of the District to proceed promptly under this Article to enforce 
the provisions and penalties thereof, and the finding of the defendant sruilty in 
such criminal proceedings, unless reversed or set aside, shall be conclusive as 
against such defendant as to the existence of the nuisance. The proceeds of the 
sale of the personal property, as provided in the preceding Section, shall be 
applied in the payment of the costs of the action and abatement, and the balance, 
if any, shall be paid to the defendant. 

Civ. P. '22, § 496 : 1918, XXX, 816. 



155 Code of Civil Procedure § 572 

§ 572. Owner May Secure Release of Building. — If the owner appears and 
pays all costs of the proceeding and files a bond, with sureties to be approved 
by the Court, in the full value of the property, to be ascertained by the Court, 
or, in vacation, by the County Auditor's records, conditional that he will im- 
mediately abate said nuisance and prevent the same from being established or 
kept therein within a period of one year thereafter, the Court, or, in vacation, 
the Judge, may, if satisfied of his good faith, order the premises closed under the 
order of abatement to be delivered to said owner, and said order of abatement 
cancelled so far as the same may relate to the said party ; and if the proceeding 
be an action in equity and said bond be given, arid costs therein paid before judg- 
ment and order of abatement, the action shall be thereby abated as to said build- 
ing only. The release of the property under the provisions of this Section shall 
not release it from judgment, lien, penalty or liability to which it may be sub- 
ject by law. 

Civ. P. '22, § 497 ; 1918, XXX, 816. 

§ 573. Notice to Owner Before Action Against Him. — No proceeding 
against the owner of the real estate shall be commenced hereunder except ten 
days written notice be given to the said owner, or his agent, by the prosecuting 
attorney, and upon his failure thereafter to abate the nuisance. 

Civ. P. '22, § 498 ; 1918, XXX, 817. 

§ 574. Immunity of Witnesses. — The Solicitor, Attorney General, or other 
attorney representing the prosecution for violation of this Statute, with the ap- 
proval of the Court, may grant immunity to any witness called to testify in 
behalf of the prosecution. 

Civ. P. '22, § 499 ; 1918, XXX, 817. 



CHAPTER 5 
Receivership and Other Provisional Remedies 

§ 575. Powers of Courts as to Receivers. — A receiver may be appointed by 
a Judge of the Circuit Court, either in or out of Court : 

(1) Before judgment, on the application of either party, when he establishes 
an apparent right to property which is the subject of the action, and which is in 
the possession of an adverse party, and the property, or its rents and profits, 
are in danger of being lost, or materially injured or impaired; except in cases 
where judgment upon failure to answer may be had without application to the 
Court. 

(2) After judgment, to carry the judgment into effect. 

(3) After judgment, to dispose of the property according to the judgment, 
or to preserve it during the pendency of an appeal, or when an execution has- 
been returned unsatisfied, and the judgment debtor refuses to apply his property 
in satisfaction of the judgment. 

(4) When a corporation has been dissolved, or is insolvent, or in imminent 
danger of insolvency, or has forfeited its corporate rights; and, in like cases, 
of the property within this State of foreign corporations. Receivers of the prop- 
erty within the State of foreign or other corporations shall be allowed such com- 
missions as may be fixed by the Court appointing them, not exceeding five per 
cent, on the amount received and disbursed by them. 



§ 575 Code of Civil Procedure 156 

(5) In such other cases as are now provided by law, or may be in accordance 
with the existing practice, except as otherwise provided in this Code of Pro- 
cedure. 

(6) Eeceiver Not to Be Appointed Without Notice. — No receiver of the 
property of any person or corporation shall be hereafter appointed by any Court 
or Judge, either in term time or at chambers, without notice of the application 
for such appointment to the party or parties to the action whose property is 
sought to be put in the hands of a receiver, and to the party or parties to the 
action in possession of such property claiming an interest therein under any 
contract, lease or conveyance thereof from the alleged owner. At least four days ' 
notice of the application must be given, unless the Court shall, upon it being 
made to appear that delay would work injustice, prescribe a shorter time. 

(7) Notice to Non-Resident — On Whom Served. — Where the party whose 
property is sought to be placed in the hands of a receiver cannot be found within 
the State, then notice of the application to the party in possession of such prop- 
erty shall be sufficient ; and where the property is abandoned and not in posses- 
sion of any one, and the party claiming the same cannot be found within the 
State, then the appointment may be made without the notice of the application : 
Provided, That whenever a receiver is appointed and the party claiming the 
property cannot be found within the State, notice of such appointment shall be 
forthwith given by publication or personal service without the State, as pre- 
scribed by law in the case of a summons in a civil action. 

(8) Temporary Injunction May Be Granted Without Notice. — The Court 
or Judge may by temporary injunction, without notice, pending the hearing of 
such application, restrain the delivery of the property, or any part thereof, 
sought to be put in the hands of a receiver to any other person whomsoever, and 
the Court shall be deemed to have taken jurisdiction over such property from 
the time of the issuance of such temporary injunction: Provided, That no such 
temporary injunction shall issue so as to interfere with the use and disposition 
of such property by any person or corporation in the usual and customary mode 
and course of business and use of the same without the Court or Judge first 
requiring from the party applying for such injunction a bond, with security, in 
a sufficient sum, not less than two hundred and fifty dollars, to pay all damages 
arising from said temporary injunction should no receiver be appointed on the 
hearing of the application. 

(9) No Receiver to Be Appointed Before Judgment Without Bond. — No 
receiver of the property of any person or corporation shall be hereafter ap- 
pointed before final judgment in the cause if the party claiming the property 
so sought to be placed in the hands of a receiver or the party in possession there- 
of shall offer a bond, in the penalty of double the value of the property, with 
sufficient security, approved by the Clerk of the Court of Common Pleas of the 
Courts in which the action is brought, to fully account for and deliver over, 
whenever thereafter required by any final adjudication in the cause, the prop- 
erty sought to be placed in the hands of a receiver, and to meet and satisfy any 
decree or judgment or order that may be made in the cause. 

(10) Court to Fix Value of Property to Be Affected. — Whenever the 
Court or Judge before whom such application is made shall appoint a receiver 
before final judgment in the cause, there shall be inserted in the order of ap- 
pointment a clause fixing the value of the property for which the bond may be 
given, as prescribed in Subdivision 8 of this Section ; and upon the due execu- 



157 Code of Civil Procedure § 575 

tion and filing of such bond thereafter before final judgment in the cause, the 
Court or Judge shall vacate the appointment of such receiver and direct the 
redelivery of the property to the party from whose possession it was taken: 
Provided, That where, under the orders of the Court or Judge, the receiver 
has incurred any lawful charges and expenses in the care and custody of the 
property put into his hands, the Court or Judge, before directing the redelivery, 
may require sufficient security to be given in addition for the payment of such 
lawful charges and expenses should they be thereafter finally adjudged to be 
chargeable against the property. 

(11) How Damages Ascertained if Receiver Is Improperly Appointed. — 
Whenever a receiver shall have been appointed of any property against the 
opposition of any party to the cause, and shall have taken possession of the 
same, and thereafter by any final adjudication such receiver shall be held to have 
been improperly appointed, the costs, charges and expenses of such receiver- 
ship shall not be charges upon the property as a whole, but only upon the in- 
terests therein of the party or parties procuring the appointment ; and any party 
to the cause having opposed such receivership may apply to the Court after 
final adjudication, as aforesaid, and have it referred to a Master, Referee or 
jury, as the practice in the case presented may be proper, to have his actual 
damages by reason of such receivership ascertained and assessed and for judg- 
ment therefor against the party or parties having procured such receiver. 

(12) Bonds to Be Made Payable to Clerk of Court, Etc. — The several 
bonds required by this Chapter shall be made payable to the Clerks of the 
respective Courts in which the action is pending in which the bonds shall be 
made, and shall be conditioned as required by this Chapter, and shall, upon exe- 
cution and approval as to form and sufficiency by the Court or Judge, or such 
other officer as the order shall prescribe, be filed in the office of the Clerk of 
Court, who shall, upon demand of any party to the cause and payment of the 
legal fees therefor, give certified copies of such bonds, on which any party en- 
titled to the benefit thereof may sue the parties liable thereon in any Court of 
competent jurisdiction ; and the production of such certified copy shall be 
prima facie evidence of the bond. Should the security become insufficient upon 
any of such bonds after the same have been given and approved, the Court or 
Judge may, upon application, after notice, require the security to be made 
sufficient, and on default therein may proceed as if no bond had been given, but 
without prejudice to the right of any party entitled to the benefit of such bond, 
to enforce it according to the terms and conditions thereof. 

(13) Deposit of Money, Etc., in Court. — ^When it is admitted by the plead- 
ing or examination of a party, that he has in his possession, or under his control, 
any money or other thing capable of delivery, which, being the subject of litiga- 
tion, is held by him as trustee, for another party, or which belongs or is due to an- 
other party, the Court may order the same to be deposited in Court, or delivered 
to such party, with or without security, subject to the further direction of the 
Court. 

(14) Other Provisional Remedies. — ^Whenever in the exercise of its author- 
ity, a Court shall have ordered the deposit, delivery, or conveyance of money or 
other property, and the order is disobeyed, the Court, besides punishing the dis- 
obedience as for contempt, may make an order requiring the Sheriff or Constable 
to take the money or property, and deposit, deliver, or convey it, in conformity 
with the direction of the Court. 



§ 576 Code of Civil Procedure 158 

(15) Judgment for Sum Admitted DuE.~When the answer of the defendant 

expressly, or by not denying, admits part of the plaintiff's claim to be just, the 

Court on motion, may order such defendant to satisfy that part of the claim 

and may enforce the order as it enforces a judgment or provisional remedy. 

Civ. P. '22, § 524 ; Civ. P. '12, § 303 ; Civ. P. '02, § 265 ; 1870, XIV, § 267 ; 1897, XXII, 
510. 



TITLE 8 

Trial and Judgment in Civil Actions 

Chapter 1. Judgment by Default or Upon Frivolous Pleadings, § 576. 

Chapter 2. Issues and Mode of Trial, § 579. 

Chapter 3. Trial by Jury, § 590. 

Chapter 4. Trial by the Court, § 639. 

Chapter 5. Trial by Referee, § 643. 

Chapter 6. Judgments, § 648. 



CHAPTER 1 

Judgment by Default or Upon Frivolous Pleading 

576. Judgment Defined. 578. Judgment on Frivolous Pleading. 

577. Judgment on Default or for Excess 
over Counterclaim. 

§ 576. Judgment Defined. — A judgment is the final determination of the 
rights of the parties in the action. 

Civ. P. '22, § 525 ; Civ. P. '12, § 304 ; Civ. P. '02, § 266 ; 1870, XIV, § 268. 

§ 577. Judgment on Failure to Ansv^er, or for Excess Over Counterclaim 
— Claim and Delivery and Other Cases. — Judgment may be had, if the defend- 
ant fail to answer the complaint, as follows : 

(1) In any action on contract the plaintiff may file proof of lawful service 
of summons and complaint on one or more of the defendants, or of the sum- 
mons, according to the provisions of Section 422, and that no appearance, an- 
swer or demurrer has been served on him. It shall be the duty of the Clerk to 
place all such cases on the default calendar, and said calendar shall be called the 
first day of the term. When the action is on a complaint for the recovery of money 
only, judgment may be given for the plaintiff by default if the demand be 
liquidated; and if unliquidated, and the plaintiff itemize his account, and ap- 
pend thereto an affidavit that it is true and correct, and no part of the sum 
sued for has been paid, by discount or otherwise, and a copy be served with the 
summons and complaint on the defendant; or if the plaintiff prove his claim 
in open Court, whether itemized or not, and the defendant shall neither answer, 
demur nor serve notice of appearance, the plaintiff shall have judgment for the 
sum sued for as in the case of liquidated demands. But in case notice of ap- 
pearance in an action has been given, by or on behalf of a defendant, but no 
answer or demurrer has been, or thereafter shall be, served within the time re- 
quired by law, the plaintiff, upon filing proof of such facts, shall have his 
judgment by default against such defendant in the same manner, and with 
like effect, as in cases where no notice of appearance has been given. In all 
other cases the relief to be afforded the plaintiff shall be ascertained either by the 
verdict of a jury or in cases in chancery by the Judge, with or without a refer- 
ence, as he may deem proper. The order for judgment in such cases shall be 



159 



Code of Civil Pkocedure 



§ 578 



endorsed upon or attached to the complaint. Where the defendant, by his 
answer in any such action, shall not deny the plaintiff's claim, but shall set up 
a counterclaim amounting to less than the plaintiff's claim, judgment may be 
had by the plaintiff for the excess of said claim over the said counterclaim in like 
manner in any such action, upon the plaintiff's filing with the Clerk of the 
Court a statement admitting such counterclaim, which statement shall be an- 
nexed to and be a part of the judgment roll. 

Whenever an action is brought in Claim and Delivery in any Court in this 
State judgment may be given for the plaintiff by default, and without a jury, 
for the property in question, or the value thereof as set forth in the complaint. 
And such judgment by default may be taken at chambers or in open Court as 
other default judgments. 

(2) When Service of Summons by Publication. — In actions where the serv- 
ice of the summons was by publication, the plaintiff may, in like manner, apply 
for judgment, and the Court must thereupon require proof to be made of the 
demand mentioned in the complaint, and, if the defendant be not a resident 
of the State, must require the plaintiff or his agent to be examined, on oath, re- 
specting any payments that have been made to the plaintiff, or to any one for 
his use, on account of such demand, and may render judgment for the amount 
which he is entitled to recover. Before rendering judgment, the Court may, in 
its discretion, require the plaintiff to cause to be filed, satisfactory security,, 
to abide the order of the Court, touching the restitution of any estate or effects, 
which may be directed by such judgment to be transferred or delivered, or the 
restitution of any money that may be collected under or by virtue of such judg- 
ment, in case the defendant or his representatives shall apply and be admitted 
to defend the action, and shall succeed in such defense. 

Civ. P. '22, § 526 ; Civ. P. '12, § ,305 ; Civ. P. '02, § 267 ; 1870, XIV, § 269 ; 1873, XV, 502 ; 
1882, XVIII, 112 ; 1884, XVIII, 709 ; 1899, XXIII, 41 ; 1929, XXXVI, 25. 

§ 578. Judgment on Frivolous Demurrer, Answer or Reply. — If a de- 
murrer, answer, or reply be frivolous, the party prejudiced thereby, upon a 
previous notice of five days, may apply to a Judge of the Court, either in or out 
of the Court, for judgment thereon, and judgment may be given accordingly. 

Civ. P. '22, § 527 ; Civ. P. '12, § 306 ; Civ. P. '02, § 268 : 1870, XIV, § 270. 



CHAPTER 2 
Issues and Mode of Trial 



579. Kinds of Issues. 

580. Issue of Law. 

581. Issue of Fact. 

582. Issues of Law and Fact. 

583. Trial Defined. 

584. Trial of Issues. 



585. Issues tried by Court. 

586. Filing Summons and Complaint and 
Docketing Case. 

587. Stenographers. 

588. Special Stenographers. 

589. Order for Disposing of Issues. 



§ 579. The Different Kinds of Issues.— Issues arise upon the pleadings when 
a fact or conclusion of law is maintained by the one party and controverted by 
the other. They are of two kinds: 

(1) Of law; and 

(2) Of fact. 

Civ. P. '22, § 528 ; Civ. P. '12, § 307 ; Civ. P. '02, § 269 : 1870, XIV, § 271. 

§ 580. Issue of Law. — An issue of law arises: 

Upon a demurrer to the complaint, answer, or reply, or to some part thereof. 

Civ. P. '22, § 529 ; Civ. P. '12, § 308 ; Civ. P. '02, § 270 ; 1870. XIV, § 272. 



§ 581 Code of Civil Progeduee 160 

§ 581. Issue of Fact. — An issue of fact arises: 

(1) Upon a material allegation in the complaint controverted by the answer; 
or, 

(2) Upon new matter in the answer controverted by the reply; or, 

(3) Upon new matter in the reply except an issue of law is joined thereon. 
Civ. P. '22, § 530 ; Civ. P. '12, § 309 ; Civ. P. '02, § 271 ; 1870, XIV, § 273. 

§ 582. On Issues of Both Law and Fact, the Issues to be Tried Together. — 

Issues, both of law and of fact, may arise upon different parts of the pleadings 
in the same action. 

In such case the cause shall be placed on the calendar of issues of fact, and the 
issues shall be tried together, unless the Court otherwise direct. 

Civ. P. '22, § 531 ; Civ. P. '12, § 310 ; Civ. P. '02, § 272 ; 1870, XIV, § 274 ; 1873, XV, 498. 

§ 583. Trial Defined. — A trial is the judicial examination of the issues be- 
tween the parties, whether they be issues of law or fact. 

Civ. P. '22, § 532 ; Civ. P. '12, § 311 ; Civ. P. '02, § 273 ; 1870, XIV, § 275. 

§ 584. Issues — How Tried. — An issue of law must be tried by the Court, as 
also cases in chancery, unless they be referred as provided in Chapter 5 of this 
Title. An issue of fact, in an action for the recovery of money only, or of specific 
real or personal property, must be tried by a jury, unless a jury trial be waived, 
as provided in Section 639 or a reference be ordered. 

Feaming of Issues. — In all equity causes now pending or hereafter instituted 
in the Courts of Common Pleas of this State, the presiding Judge may, in his dis- 
cretion, cause to be framed an issue or issues of fact, to be tried by a jury. 

Trial of Issues Regulated. — Such issues shall be tried at the same term of 
Court at which they are ordered, and if necessary, a day shall be set for the 
trial of the same: Provided, That a continuance may be ordered by the Court 
m proper cases. 

When to Be Ordered. — Upon the first day of the term, immediately after 
the call of Calendar 3, the presiding Judge shall call for cases in which such 
issues are desired, and if any are presented in which such issues are, in his 
judgment, proper, he shall at once call the same to be framed and placed upon 
the proper calendar for trial. 

Force of Verdict — New Trials — Exceptions and Appeals. — The findings 
of fact upon such issues by the jury shall be conclusive of the same : Provided, 
That the presiding Judge may grant new trials therein, according to the prac- 
tice in other jury trials : And provided, further. That exceptions to the rulings 
of the presiding Judge upon such trials may be taken by either party, and such 
rulings may be reviewed by the Supreme Court upon appeal from the final 
judgment. 

Trial and Decision at Same Term — Appeal. — At some time during the term 
the presiding Judge shall hear the cause out of which such issues are ordered, 
and shall, some time during said term or thereafter, file his decision therein 
as in other equity causes, from which decision there shall be the same right of 
appeal now existing in like causes. 

Civ. P. '22, § 533 ; Civ. P. '12, § 312 ; Civ. P. '02, § 274 ; 1870, XIV, § 276 ; 1890, XX, 696. 

§ 585. Issues Triable by Court. — Every other issue is triable by the Court, 
which, however, may order the whole issue, or any specific question of fact in- 
volved therein, to be tried by a jury, or may refer it, as provided in Sections 
643 and 644. 

Civ. P. '22, § 534 ; Civ. P. '12, § 313 ; Civ. P. '02, § 275 ; 1870, XIV, § 277. 



161 Code of Civil Procedure § 586 

§ 586. Summons and Complaint to Be Filed in Clerk's Office — Docketing 
Cases. — In all issues to be tried by the Court or a jury the plaintiff shall, at 
least fourteen days before Court, file in the Clerk's office the summons and com- 
plaint in the cause, endorsing thereon the nature of the issue and the number 
of the calendar upon which the same shall be placed, and if the plaintiff fail 
to do so the defendant, seven days before the Court, may file copies of said papers 
with a like endorsement, and the Clerk shall thereupon place said cause upon 
its appropriate calendar, and it shall stand for trial without any further notice 
of trial or notice of issue. There shall be three calendars for the Court of Com- 
mon Pleas, and the Clerk shall arrange the causes thereon as follows : Upon 
Calendar 1 shall be placed all cases and issues to be passed upon by a jury. Upon 
Calendar 2 shall be placed all cases to be passed upon by the Court, including 
all motions and rules to show cause. Upon Calendar 3 shall be placed all cases 
where judgments by default are to be taken, and on the opening of the Court 
of Common Pleas this calendar shall be called first in order. 

Carrying the Dockets Forw^ard — Forfeiture of Fees. — The Clerk shall, 

within twenty days after every adjournment of the Court of Common Pleas, 

carry forward on Calendars Nos. 1 and 2, for trial or hearing at the next term, 

all causes not finally disposed of at the preceding term, and shall enter in regular 

order all subsequent causes duly filed and endorsed as above provided, and 

upon entering the same shall endorse upon the summons the date of filing, the 

number of the calendar in which the cause is entered, and its number on the 

calendar. In case of his failure to comply with any of the requirements of this 

Section, the Clerk shall forfeit all docketing fees for the term of the Court next 

succeeding. 

Civ. P. '22, § 535 ; Civ. P. '12, § 314 ; Civ. P. '02, § 276 ; 1870, XIV, § 278 ; 1873. XV, 
498; 1882, XVIII, 41; 1887, XIX, 836; 1903, XXIV, 131. 

§ 587. Court Stenographers — How Appointed. — (1) There shall be four- 
teen Court stenographers, one for each Judicial Circuit of the State, who shall 
be appointed by the Circuit Judge of the respective circuits for a period not 
exceeding the term for which the Circuit Judge making the appointment was 
elected, and such Court stenographer shall be subject to removal by the Circuit 
Judge making the appointment. It shall be the duty of every stenographer so 
appointed, under the direction of the presiding Judge of his circuit, to take 
full stenographic notes of all proceedings, including the rulings and charge 
of the Court in every trial thereat; and in case the presiding Judge, or the 
Solicitor, for use in criminal cases, shall require a transcript of said stenographic 
notes, the stenographer shall furnish the same written out in full. 

(2) Compensation of Stenographers. — Each Circuit Court stenographer 
shall receive an annual salary of twenty-one hundred ($2,100.00) dollars: Pro- 
vided, That this provision shall not apply to the stenographers of the Court of 
General Sessions of the Fifth and Seventh Judicial Circuits. The said salaries 
shall be payable monthly upon warrants of the Comptroller General. The said 
stenographers shall also receive a fee of five cents per hundred words for all tran- 
scripts furnished litigants, except in the Second, Fifth, Sixth, Seventh and 
Twelfth Circuits and in the Third and Eleventh Circuits in civil cases, where 
the fees for transcripts shall be ten cents per folio of one hundred words, which 
fees shall be paid by the parties litigant, . except in criminal cases where the 
defendant satisfies the Court that he is unable to pay for such transcript, when 
the same shall be furnished without fee by the Court stenographer : Provided, 
That any failure on the part of the Court stenographer, to furnish a transcript 



§ 588 Code of Civil Procedure 162 

of any case, or any part thereof, within thirty days from the time a demand 

be made, shall forfeit his right to any pay for said transcript. Any sum so paid 

by any party shall be considered a necessary disbursement in the taxation of 

costs. 

Civ. P. '22, § 536 ; Civ. P. '12, § 315 ; Civ. P. '02, § 277 ; 278 ; 1906, XXV, 7 ; 1910, XXVI, 
713 ; 1912, XXVII, 767, 774 ; 1919, XXXI, 101. 

§ 588. Circuit Judges to Appoint Special Stenographers When Steno- 
grapher is Disabled. — The Circuit Judges of this State are hereby authorized 
to appoint a special Court stenographer to act in the place and stead of the 
regular Court stenographer in case of sickness, absence or inability to act at 
any term or part of a term of either the Court of Common Pleas or General 
Sessions; and such stenographer, when so appointed, shall receive not more 
than the sum of seven and one-half dollars per day for each day he may be in 
attendance upon said Court. It shall be the duty of the presiding Judge to 
certify the number of days any such special stenographer may be engaged in the 
Courts as such; upon this certificate the Comptroller General shall draw his 
warrant upon the State Treasurer for the amount due said stenographer for his 
services, and the said State Treasurer is authorized to pay the same. 

Civ. P. '22, § 537 ; Civ. P. '12, § 316 ; 1908, XXV, 1012. 

§ 589. Order of Disposing of Issues on the Calendar. — The issues on the 
calendar shall be disposed of in the following order, unless, for the convenience 
of parties or the dispatch of business, the Court shall otherwise direct : 

(1) Issues of fact to be tried by a jury. 

(2) Issues of fact to be tried by the Court. 

(3) Issues of law. 

Civ. P. '22, § 538 ; Civ. P. '12, § 317 ; Civ. P. '02, § 279 ; 1870. XIV, § 281. 



CHAPTER 3 

Trial by Jury 

Article 1. General and Special Verdicts, § 590. 

Article 2. Drawing and Summoning Jurors, § 598. 

Article 3. Qualification, Exemption, Empaneling and Pay of Jurors, § 618. 

Article 4. Objection to Jurors, § 628. 

Article 5. Miscellaneous Provisions, § 634. 



ARTICLE 1 
General and Special Verdicts 

590. Separate Trials as to Different De- ial Findings. 

fendants. 594. Special Finding Controls General 

591. Copy of Pleadings for Court. Verdict. 

592. General and Special Verdicts De- 595. Assessment of Damages, 
fined. 596. Verdict and New Trial. 

593. General or Special Verdict and Spec- 597. Hearing of Motions. 

§ 590. Trial — Separate Trials. — Either party complying with the require- 
ments of Section 586 may bring the issue to trial, and, in absence of the adverse 
party, unless the Court for good cause otherwise direct, may proceed with his 
case, and take a dismissal of the complaint, or a verdict or judgment, as the case 
may require. A separate trial between a plaintiff and any of the several de- 



163 Code of Civil Pkocedure § 591 

fendants may be allowed by the Court whenever, in its opinion, justice will 
thereby be promoted. 

Civ. P. '22, § 539 ; Civ. P. '12, § 31S ; Civ. P. '02, § 2S0 ; ISTO, XIV, § 282. 

§ 591. Coiirt to be Furnished with Copy of Pleadings. — When the issue 
shall be brought to trial by the plaintilf, he shall furnish the Court with a copy 
of the summons and pleadings, with the offer of defendant, if any shall have 
been made. When the issue shall be brought to trial by the defendant, and the 
plaintiff' shall neglect or refuse to furnish the Court with a copy of the sum- 
mons and pleadings and the off!er of the defendant, the same may be furnished 
by the defendant. 

Civ. P. '22, § 540 ; Civ. P. '12, § 319 ; Civ. P. '02, § 281 ; 1870, XIV, § 283. 

§ 592. General and Special Verdicts Defined. — A general verdict is that 
by which the jury pronounce generally upon all or any of the issues, either in 
favor of the plaintiff' or defendant. A special verdict is that by which the jury 
finds the facts only, leaving the judgment to the Court. 

Civ. P. '22, § 541 ; Civ. P. '12, § 320 ; Civ. P. '02, § 282 ; 1870, XIV, § 284. 

§ 593. When Jury May iiender Special or General Verdict — Directing 
Special Fndings. — In an action for the recovery of specitic personal property, 
if the property have not been delivered to the plaintiff, or if it have, and the 
defendant, by his answer, claim a return thereof, the jury shall assess the value 
of the property, if their verdict be in favor of the plaintiff', or if they find in favor 
of the defendant, and that he is entitled to a return thereof, and may at the 
same time assess the damages, both actual and punitive, if any are claimed in 
the complaint or answer, which the prevailing party has sustained by reason 
of the detention or taking and withholding such property. In every action for 
the recovery of money only, or specific real property, the jury in their dis- 
cretion may render a general or special verdict. In all other cases, the Court may 
direct the jury to find a special verdict in writing upon any or all of the issues, 
and in all cases may instruct them, if they render a general verdict, to find 
upon particular questions of fact to be stated in writing, and may direct a 
written finding thereon. The special verdict or finding shall be filed with the 
Clerk, and entered upon the minutes. 

Actions for Recovery of Personal Property — What Jury May Find. — 
In every action for the recovery of personal property which has been pledged in 
any way to secure credit or debt, the defendant may plead his counterclaim 
arising out of the same transaction, and the jury in such case may find, in ad- 
dition to the verdicts now provided by law, the amount due to the plaintiff if 
any; and in such case the defendant shall have the right to pay said amount, 
and costs, and the property shall thereafter be free from the encumbrance. 

Civ. P. '22, § 542 ; Civ. P. '12, § 321 ; Civ. P. '02, § 283 ; 1870, XIV, 285 ; 1909, XXVI. 161. 

§ 594. On Special Finding with a General Verdict, Former to Control. — 

Where a special finding of facts shall be inconsistent with the general verdict, 
the former shall control the latter, and the Court shall give judgment accord- 
ingly. 

Civ. P. '22, § 543 ; Civ. P. '12, § 322 ; Civ. P. '02, § 284 ; 1870, XIV, § 286. 

§ 595. Jury to Assess Defendant's Damages in Certain Cases.— When a 
verdict is found for the plaintiff in an action for the recovery of money, or for 
the defendant when a set-off for the recovery of money is established, beyond 
the amount of the plaintiff's claim as established, the jury must also assess 



§ 596 Code of Civil Procedure 164 

the amount of the recovery; they may also, under the direction of the Court, 
assess the amount of the recovery when the Court gives judgment for the plain- 
tiif on the answer. If a set-off, established at the trial, exceed the plaintiff's de- 
mand so established, judgment for the defendant must be given for the excess; 
or if it appear that the , defendant is entitled to any other affirmative relief, 
judgment must be given accordingly. 

Civ. P. '22, § 544 ; Civ. P. '12, § 323 ; Civ. P. '02, § 285 ; 1870, XIV, § 287. 

§ 596. Entry of Verdict — Motion for New Trial. — (1) Upon receiving a 
verdict, the Clerk shall make an entry in his minutes, specifying the time and 
place of trial, the names of the jurors and witnesses, the verdict, and either the 
judgment rendered thereon or an order that the cause be reserved for argu- 
ment or further consideration. If a different direction be not given by the Court, 
the Clerk must enter judgment in conformity with the verdict. (2) If an ex- 
ception be taken, it may be reduced to writing at the time, or entered in the 
Judge's minutes, and afterwards settled as provided by the rules of Court, and 
then stated in writing in a case, or separately, with so much of the evidence as 
may be material to the questions to be raised, but need not be sealed or signed 
nor need a bill of exceptions be made. (3) If the exceptions be, in the first 
instance, stated in a case, and it be afterwards necessary to separate them, the 
separation may be made under the direction of the Court, or a Judge thereof. 
(4) The Judge who tries the cause may, in his discretion, entertain a motion, 
to be made on his minutes, to set aside a verdict and grant a new trial upon 
exceptions, or for insufficient evidence, or for excessive damages; but such 
motions, if heard upon the minutes, can only be heard at the same term at which 
the trial is had. When such motion is heard and decided upon the minutes of 
the Judge and an appeal is taken from the decision, a case or exceptions must 
be settled or agreed upon in the usual form, upon which the argument of the 

appeal must be had. 

Civ. P. '22, § 545 ; Civ. P. '12, § 324 ; Civ. P. '02, § 286 ; 1870, XIV, § 288. 

§ 597. Motion for New Trial, or for Judgment on Special Verdict — Where 
to be Heard. — A motion for a new trial on a case or exceptions, or otherwise, 
and an application for judgment on a special verdict or case reserved for 
argument or further consideration, must, in the first instance, be heard and 
decided at the same term, except that when exceptions are taken, the Judge 
trying the cause may, at the trial, direct them to be heard at some subsequent 
term, and the judgment in the meantime suspended ; and in that case they must 
be there heard in the first instance, and judgment there given. And when, upon 
a trial, the case presents only questions of law, the Judge may direct a verdict. 

Civ. P. '22, § 546 ; Civ. P. '12, § 825 ; Civ. P. '02, § 287 ; 1870, XIV, § 289. 



ARTICLE 2 
Drawing and Summoning Jurors 

598. Jury Commissioners. 610. Special Jury List. 

599. Jury List. 611. Irregularities. 

600. Jury Box. 612. Special Juries. 

601-608-9. Drawing and Summoning 613. Vacancy in Jury Commissioners. 

Jurors. 614. Remedy when Commissioners Fail to 
602. Place and Manner of Drawing Prepare List. 

Jurors. 615. No Compensation for Commissioners. 

603-4. Method of Selection. 616. Term of Jurors. 

605. Additional Jurors. 617. Grand Jury may Employ Account- 

606. Drawing Jurors from Tales Box. ant. 

607. Number of Jurors Drawn. 



165 Code of Civil Procedure § 598 

§ 598. Jury Commissioners — of Whom Constituted. — The County Auditor, 

the County Treasurer and the Clerk of the Court of Common Pleas of each 

county in this State shall perform the duties hereinafter set forth. 

Civ. P. '22, § 547 ; Civ. P. '12, § 4016 ; Civ. P. '02, § 2909 ; G. *^. 2254 ; R. S. 2373 ; 1871, 
XIV, 690 ; 1874, XV, 638 ; 1893, XXI, 524 ; 1896, XXII, 16 ; 1902, XXIII, 1066. 

§ 599. Preparation of Jury List — Electors to Be Placed on — ^When Pre- 
pared — Proviso as to dewberry County. — The said County Auditor, County 
Treasurer, and the Clerk of Court of Common Pleas of each county shall, in 
the month of December of each year, prepare a list of such qualified electors, 
under the provisions of the Constitution, between the ages of twenty-one and 
sixty-five years, of good moral character, of their respective counties, as they 
may deem otherwise well qualified to serve as jurors, being persons of sound 
judgment and free from all legal exceptions, which list shall include not less 
than one from every three of such qualified electors under the provisions of the 
Constitution, between the ages of twenty-one and sixty-five years, and of good 
moral character, to be selected without regard to whether such persons live 
within five miles or more than five miles from the court house : Provided, That 
in the County of Newberry said list shall be prepared during the month of July. 

Civ. P. '22, § 548 ; Civ. "12, § 4017 ; 1902, XXIII, 1066 ; 1915, XXIX, 76. 

§ 600. Jury Box — How Prepared — How Secured and Kept — Tales Box 
to Be Prepared. — Of the list so prepared, the County Auditor, County Treas- 
urer and Clerk of the Court of Common Pleas shall cause the names to be writ- 
ten, each one on a separate paper or ballot, so as to resemble each other as 
much as possible and so folded that the name written thereon shall not be 
visible on the outside, and shall place them, with the said list, in a strong and 
substantial box, without apertures or openings when closed (to be known as 
the "Jury Box") to be furnished to them by the County Supervisor of their 
county for that purpose, and of such size and shape as that, when such separate 
papers or ballots shall have been folded and placed therein as above required, 
they may be easily shaken up and about and well mixed therein, and it shall be 
the duty of the Clerk of the Court to keep said jury box in his custodj^ The 
said jury box shall be kept securely locked with three separate and strong locks, 
each lock being different and distinct from the other two and requiring one 
key peculiar to itself in order to be unlocked and the key to one of said three 
locks shall be kept by the County Auditor himself, the key to another of said 
three locks by the County Treasurer himself, and the key to the third of said 
three locks by the Clerk of the Court of Common Pleas himself, so that no two 
of them shall keep a similar key or similar keys to the same lock, and so that 
all three of them must be present together at the same time and place in order 
to lock or unlock and open the said jury box. At the same time they shall place 
in a special apartment in the said jury box (which special apartment shall be 
known as "the tales box") the names of not less than one hundred nor more 
than eight hundred of such of the persons whose names appear on said list as 
reside within five miles of the Court House, from which tales box shall be 
drawn jurors to supply deficiencies arising from any cause of emergency dur- 
ing the sitting of the Court. The names of persons placed in said tales box shall 
be also placed in the said jury box. 

Civ. P. '22, § 549 ; Civ. P. '12, § 4018 ; 1902, XXIII, 1066 ; 1921, XXXII, 276. 

§ 601. Petit Jurors — How Drawn and Summoned. — Not less than ten nor 
more than twenty days before the first day of each week of any regular or 



§ 602 Code of Civil Procedure 166 

special term of the Circuit Courts the said County Auditor and the County 
Treasurer, and the Clerk of the Court of Common Pleas shall proceed to draw 
thirty-six petit jurors to serve for such week only: Provided, That it shall be 
the duty of the Jury Commissioners for Marlboro County to draw and issue a 
venire for a full complement of thirty-six jurors to serve for each week pro- 
vided by law for the holding of the Court of Common Pleas for said county : 
Provided, further, That whenever a jury shall be charged with a case, such 
jury shall not be discharged by reason of anything in this Section contained 
until a verdict shall be found or a mistrial ordered in such case. Immediately 
after such petit jurors are drawn, the Clerk of the Court of Common Pleas shall 
issue his writ of venire facias for such petit jurors, requiring their attendance 
on the first day of the week for which they have been drawn ; and the said writ 
of venire facias shall be forthwith delivered to the Sheriff of the county. 
Civ. P. '22, § 550 ; Civ. '12, § 4019 ; 1902, XXIII, 1066 ; 1916, XXIX, 820. 

§ 602. Jurors to Be Publicly Drawn. — The said drawing shall be made 
openly and publicly in the office of the Clerk of the Court of Common Pleas, 
and the County Auditor, the County Treasurer and the Clerk of the Court of 
Common Pleas shall give ten days' notice of each of said drawings by posting 
in a conspicuous place on the court house door, or by advertisement in a 
county newspaper, a notice of the place, day and hour of such drawing. 

Civ. P. '22, § 551 ; Civ. '12, § 4020 ; 1902, XXIII, 1066. 

§ 603. Jurors Selected by Draft. — All jurors shall be selected by drawing 
ballots from the said jury box, and, subject to the exceptions hereinbefore con- 
tained, the persons whose names are on the ballots so drawn shall be returned 
to serve as jurors. 

Civ. P., '22, § .552; Civ. '12, § 4021; 1902, XXIII, 1066. 

§ 604. Disposition of Names Drawn. — The names of those who are drawn 
and actually serve as jurors shall be placed in an envelope, and shall not be 
put back into the said jury box until the first revision of the jury list herein 
provided for after they have been so drawn, to the end that no person shall 
serve as a juror more than once in one year. The same rule shall be observed 
as to drawing jurors from the said tales box : Provided, That nothing herein 
contained shall be construed to be in conflict with the provisions of the law as 
to selecting by lot from the grand jury six members thereof to serve for the 
ensuing year. 

Civ. P. '22, § 553 ; Civ. '12, § 4022 ; 1902, XXIII, 1066. 

§ 605. Venires May Issue in Term Time for Additional Jurors. — Nothing 
contained in this Article shall prevent the Clerk of the Court of Common Pleas 
from issuing venires for additional jurors in term time upon the order of the 
Court, whenever it is necessary for the convenient dispatch of its business, in 
which case venires shall be served and returned, and jurors required to attend 
on such days as the Court shall direct. 

Civ. P. '22, § 554 ; Civ. '12, § 402,3 ; 1902, XXIII, 1066. 

§ 606. Draft from Tales Box. — In drawing jurors from the said tales box 
the same rules shall be observed as in drawing from said jury box, except that 
no notice of such drawing shall be necessary. 

Civ. P. '22, § 555 ; Civ. '12, § 4024 ; 1902, XXIII, 1066. 

§ 607. Number of Jurors to be Drawn. — No more than thirty-six persons, 
to serve as petit jurors, shall be drawn and summoned to attend at one and 
the same time at any Court, unless the Court shall so order. 

Civ. p. '22, § 556 ; Civ. '12, § 4025 ; 1902, XXIII, 1066. 



167 Code of Civil Procedure § 608. 

§ 608. Sheriif to Summons Jurors — ^When. — The grand and petit jurors 
drawn, as hereinbefore prescribed from the said jury box, shall be summoned 
by the Sheriff as provided by law, at least four days before the time fixed in 
the venire for them to attend the sitting of the Court : Provided, That in the 
County of Cherokee and in the Counties of Union and Spartanburg the Sheriff 
may summon all grand and petit jurors by sending by registered mail with 
request for a return card a summons directed to such juror, and also a card for 
written acceptance by such juror, to be signed and returned to the Sheriff. The 
Sheriff shall prepay all postage and keep an account of such as actual expenses, 
for which he shall be reimbursed by the County Board of Commissioners in the 
manner provided by law. 

Civ. P. '22, § 557 ; Civ. '12, § 4026 ; 1902, XXIII, 1066 ; 1913, XXVII, 26. 

§ 609. Deficiency in Jurors — How Supplied. — Whenever it shall be neces- 
sary to supply any deficiencies in the number of grand or petit jurors duly 
drawn, whether caused by challenge or otherwise, it shall be the duty of the 
County Auditor, the County Treasurer and the Clerk of the Court of Common 
Pleas under the direction of the Court, to draw from the said tales box such 
number of fit and competent persons to serve as jurors as the Court shall deem 
necessary to fill such deficiency. 

Civ. P. '22, § 558 ; Civ. '12, § 4027 ; 1902, XXIII, 1066. 

§ 610. Special Jury Lists in Certain Cases. — Whenever the jury list of any 
county shall be destroyed by fire or other casualty, or whenever it shall be held 
by any Court of competent jurisdiction that the jury list of any county has been 
unlawfully prepared, or is irregular or illegal, so as to render void the drawing 
of jurors therefrom, it shall be the duty of the Countj^ Auditor, the County 
Treasurer, and the Clerk of the Court of Common Pleas of each county to pre- 
pare a special jury list for the said county forthwith in the manner herein pre- 
scribed, from which special list grand and petit jurors shall be drawn for the 
Courts of General Sessions and Common Pleas for said county until the an- 
nual jury list shall have been prepared for such county as herein provided. 

Civ. P. '22, § 559 ; Civ. '12, § 4028 ; 1902, XXIII, 1086. 

§ 611. Duty of Circuit Judge in Case of Irregularities. — ^When at any time 
it shall be determined by the resident Circuit Judge of any Circuit upon com- 
plaint made to him, that an irregularity has occurred in the drawing of the 
juries for any Circuit Court within his Circuit, or that any act has been done 
whereby the validity of any juries drawn or to be drawn may be questioned, it 
shall be lawful for such Circuit Judge to issue his order to the County Auditor, 
the County Treasurer, and the Clerk of the Court of Common Pleas for each 
county for which said Circuit Court shall be held at least five days before the 
sitting thereof, to proceed to draw jurors for such term, or take such measures 
as may be necessary to correct such error. 

Civ. P. '22. § 560 ; Civ. '12, § 4029 ; 1902, XXIII, 1066. 

§ 612. Special Juries in Certain Cases. — Whenever at any term of the 
Circuit Court the array of grand and petit jurors summoned to attend is held 
to have been irregularly or illegally drawn or summoned, the presiding Judge 
shall forthwith order, in either case, that the jury commissioners of the county 
shall immediately prepare a special list and, in open Court, draw a special 
venire of grand or petit jurors, or draw such special jury from the last list, 
prepared according to law, which special grand or petit jury so drawn and sum- 
moned shall serve instead of those discharged at such term. 

Civ. P. '22, § 561 ; 1912, XXVII, 772. 



§613 Code of Civil Peocedure 168 

§ 613. Vacancy in Jury Commissioners — How Filled. — In case there shall 
be a vacancy in the office of the Clerk of the Court of Common Pleas, County 
Auditor, or County Treasurer, at the time herein fixed for preparing said jury 
list, or for drawing a jury, or any one of said officers shall be disqualified or 
unable to serve for any cause, the County Superintendent of Education shall 
act in his place and stead, and in case there shall be a vacancy in two of said 
offices, or for any other cause, two of said officers shall be unable to serve, the 
County Superintendent of Education and the Sheriff of such county shall act 
in their places and stead: Provided, Should any of the above commissioners be 
disqualified, the resident Circuit Judge or the presiding Judge shall appoint a 
commissioner or commissioners to serve in the place of such commissioner or 
commissioners as may be disqualified during the time of his or their disqualifi- 
cation, each of whom shall receive the same per diem and mileage as is paid 
jurors. 

Civ. P. '22, § 562 ; Civ. '12, § 4030 ; 1902 ; XXIII, 1066 ; 1930, XXXVI, 1239. 

§ 614. List of Juries when Jury Commissioners Fail to Prepare List. — 

"When the Jury Commissioners in any County in this State shall have hereto- 
fore omitted or shall hereafter omit to prepare the list of jurors for the then 
ensuing year, or to prepare the ballots of the names and place them in the boxes, 
at the time and in the manner required in this Act, the Chief Justice, any As- 
sociate Justice of the Supreme Court or any Circuit Judge shall have the au- 
thority and is required to grant an order on the application of any Solicitor or 
attorney at law, showing such omission by affidavit, which may be on informa- 
tion and belief, requiring the jury commissioners in question, within ten days 
after such order, to prepare said lists and ballots of names and to prepare the 
jury boxes (nunc pro tunc), and all juries drawn from said boxes shall be as 
valid and lawful as if the said omission had not occurred. 
Civ. P. '22, § 563 ; Civ. '12, § 4031 ; 1905, XXIV, 917. 

§ 615. Jury Commissioners to Serve Without Compensation. — The said 
County Auditor, County Treasurer and Clerk of the Court of Common Pleas 
and General Sessions shall perform the duties required of them as Jury Com- 
missioners without compensation. 

Civ. P. '22, § 564; Civ. '12, § 4032; Civ. '02, § 2910; G. S. 2235; R. S. 2374; 1893, 
XXI, 524. 

§ 616. Term of Jurors. — Whenever the term of the Court of General Ses- 
sions and Common Pleas in the Counties of Edgefield, Barnwell, Marion, Marl- 
boro, Cherokee, Aiken, Richland, Orangeburg, York, Greenville, Colleton, Ches- 
ter, Darlington, Florence and Union shall be for two or more weeks, no petit 
juror shall be required to serve more than one week at any term of said Courts : 
Provided, That in the Counties of Marlboro and Marion an extra venire shall 
be drawn for the Spring Term of each alternate year only, beginning with the 
year 1899 in Marlboro County and in the year 1900 in Marion; the Clerks of 
the said counties shall receive no extra compensation for issuing such venire, 
and the Sheriffs of said counties shall receive no compensation for serving same, 
except mileage shall be allowed. Thirty-six jurors shall be drawn in the manner 
provided by law to serve for the first week, and a like number shall be drawn 
for each subsequent week of each term of said Courts; but whenever a jury 
shall be charged with a case, such jury shall not be discharged by reason of 
anything in this Section contained until a verdict shall have been found or a 
mistrial ordered in such case : Provided, That the thirty-six jurors drawn in the 



169 Code of Civil Procedure § 617 

County of York for the second week, and in the County of Barnwell for the 
second week of each Winter Term, and in the County of Aiken for the second 
week of each Spring Term of said Courts, and in the Counties of Darlington and 
Florence for the second week of each Fall Term of said Courts, and for the 
Counties of Marion and Marlboro for the second week of each term of said 
Courts, may be held over after the expiration of the time for which they were 
drawn, and until the business of the Sessions docket and the business on Cal- 
endar One (1) of the Court of Common Pleas for these counties shall be dis- 
posed of. Separate writs of venire shall issue for the jurors drawn to serve for 
each week of said terms of Court, except as provided in Section 601 for the 
drawing and issuance of a venire for a full complement of thirty-six jurors to 
serve for each week provided by law for the holding of the Court of Common 
Pleas for Marlboro County. 

Civ. P. '22, § 565 ; Civ. '12, § 4033 ; Civ. '02, § 2927 ; G. S. 2258 ; R. S. 2401 ; 1901. XXIII, 
631; 1906, XXV, 109; 1916, XXIX, 820. 

§ 617. Grand Jury may Employ Expert Accountant. — Grand juries may, 
whenever in their judgment it becomes necessary, employ one or more expert 
accountants to aid them to examine and investigate the offices, books, papers, 
vouchers and accounts of any public officer of their respective counties, and to 
fix the amount of compensation or per diem to be paid therefor, upon the ap- 
proval of the presiding or Circuit Judge, given before any expert is employed. 

Civ. P. '22, § 566 ; Civ. '12, § 4034 ; 1909, XXVI, 121. 



ARTICLE 3 

Qualification, Exemption, Empaneling and Pay of Jurors 

618. County Officers and Employees Dis- 623. Compensation. 

qualified. 624. Compensation of Jurors and Court 

619. Convicted Criminals. Attendants in Calhoun County. 

620. Persons Exempt Enumerated. 625. Empaneling Jurors. 

621. No Person Drawn more than once a 626. Foreman of Jury. 
Year. 627. Discharge of Jurors. 

622. Procedure when Juror Excused for 
Cavise. 

§ 618. County Officers and Court Employees Disqualified. — No Clerk, Con- 
stable, or Deputy of the Clerk of the Court, Sheriff, Probate Judge, County 
Commissioners, Magistrates, or other county officer, or any employee within 
the walls of any court house, shall be eligible as a juryman in any ci\'il or 
criminal case. 

Civ. P. '22, § 567 ; Civ. '12, § 4035 ; Civ. '02, § 2933 ; R. S. 2378 ; 1889, XX, 69 ; 1890, 
XX, 725. 

§ 619. Persons Guilty of Crime not to Be Drawn. — If any person whose 

name is placed in the jury box is convicted of any scandalous crime, or is 

guilty of any gross immorality, his name shall be withdrawn therefrom by the 

Board of Jury Commissioners, and he shall not be returned as a juror. 

Civ. P. '22. § 568 ; Civ. '12, § 4036 ; Civ. '02, § 2934 ; G. S. 2242 ; R. S. 2379 ; 1871, XIV, 
691. 

§ 620. Persons Exempt from Serving- as Jurors. — No person shall be ex- 
empt from service as jurors in any Courts of this State, except officers of the 
United States and of the State of South Carolina, or any county or municipal 
corporation while in the actual discharge of their duties as such, and all ordained 
Ministers of the Gospel, practicing physicians, surgeons, dentists, licensed drug- 



§ 621 Code of Civil Proceduee 170 

gists, apothecaries, pharmacists, women, practicing atorneys at law, and all 
men over sixty-five years of age, and all persons in actual transportation serv- 
ice of any railroad in this State : Provided, however. The presiding Judge may 
for cause shown excuse anyone from jury duty at that term of Court if he deems 
advisable : Provided, further, That Notaries Public shall not be deemed and con- 
sidered State officers and shall not be exempt under this Act. 

Civ. P. '22, § 569; Civ. '12, § 4037; Civ. '02, § 2935; G. S. 2240; R. S. 2380; 1832, 
VIII, 380; 1836; VIII. 447; 1871, XIV, 690; 1878, XIV, 582; 1880, XVII, 307; 1884, 
XVIII, 713 ; 1891, XX, 1124 ; 1896, XXII, 19 ; 1899, XXIII, 44 ; 1902, XXIII, 1028 ; 1907, 
XXV, 492, 1921, XXXII, 269 ; 1921, XXXII, 278 ; 1923, XXXIII, 95 ; 1925, XXXIV, 31. 

§ 621. No Persons Liable to Be Drawn More Than Once Each Year — 
Proviso. — No person shall be liable to be drawn and serve as a juror in any 
Court oftener than once in every year, but he shall not be so exempt unless he 
actually attends and serves as a juror in pursuance of draft; nor shall he be 
exempt from serving on a jury in any other Court in consequence of his having 
served before a Magistrate. 

Civ. P. '22, § 570 ; Civ. 12, § 4038 ; Civ. '02, § 2936 ; G. S. 2241 ; R. S. 2381 ; 1879, XVI, 
307. 

§ 622. No Juror to Be Excused Except for Cause — Procedure when so 
Excused. — No juror who has been drawn to serve at any term of the Court 
shall be excused except for good and sufficient cause, upon affidavits, which to- 
gether with his application, shall be filed in the office of the Clerk of the Court, 
and remain on record: Provided, however, That whenever a juror shall be so 
excused, unless the cause of the excuse shall be permanent physical disability of 
the juror, or the juror shall be a member of one of the classes of persons set 
forth in Section 620, the name of such juror shall be placed by the jury com- 
missioners on the succeeding panel of the same term of Court, unless the panel 
from which the juror shall be excused shall be the last panel for the said term, 
in which event the name of such juror shall be placed by the jury commission- 
ers on the first panel of the succeeding term of Court. The name of such juror 
so placed on any panel shall be in addition to the thirty-six names now required 
to be placed thereon under the provisions of Section 601, and it shall be the duty 
of such juror to attend the Court on the first day of the week for which he has 
been so designated without the issuance or service of any further process. And 
he shall serve as a substitute on such panel in the stead and place of any one of 
the jurors drawn on such panel whose attendance cannot then be procured or 
who may be excused from attendance on such panel for cause as hereinabove 
provided. Nothing herein contained shall be construed as requiring the service 
of any person as a juror during any calendar year other than the calendar year 
for which he has been originally drawn under the provisions of Section 601. 

Civ. P. '22, § 571 ; Civ. '12, § 4039 ; Civ. '02, § 2937 ; R. S. 2382 ; 1871, XIV, 690 ; 1930, 
XXXVI, 1222. 

§ 623. Compensation — Per Diem, and Mileage — Computation of Mileage — 
Florence County. — Jurors shall receive per day three dollars, besides mileage 
at the rate of five cents per mile going to and returning from Court. Jurors in 
Magistrate Courts shall receive fifty cents for each civil case tried and mileage 
as allowed other jurors. Whenever provision is made by law for the payment of 
mileage of jurors, witnesses and other persons required to attend Court, or to 
travel to perform any legal duty, said mileage shall be computed and paid for 
by the shortest practical route to be traveled over any regular established high- 



171 Code of Civil Procedure § 624 

way. In Florence County the pay of Grand Jurors and Petit Jurors shall be 
three ($3.00) dollars per diem. 

Civ. P. '22, § 572 ; Civ. '12, § 4040 ; Civ. '02, 2938 ; G. S. 2269 ; R. S. 2384 ; 1874, XV, 
COS ; 1878, XVI, 630 ; 1907, XXV, 518 : 1911, XXVII, 86 ; 1920, XXXI, 735 ; 1925, XXXIV, 
233. 

§ 624. Compensation of Jurors, Court Constables and Court Crier in Cir- 
cuit Court of Calhoun County. — Jurors in attendance upon the Circuit 
Court of Calhoun County shall be paid two ($2.00) dollars per day and mileage 
as now provided by law. The compensation of the Constables and Court Crier 
in attendance upon the Circuit Court of Calhoun County shall be the same as 
that fixed in Section One of this Section for jurors : Provided, That not more 
than two Constables shall be engaged for attendance upon the Court of Com- 
mon Pleas and not more than three shall be engaged for attendance upon the 
Court of General Sessions, except that the presiding Judge may provide by 
order for additional Constables upon the necessity therefor being made to ap- 
pear to his satisfaction. 

1923, XXXIII, 68. 

§ 625. Empaneling Jurors in Court of Common Pleas. — In the trial of all 
actions at law in the Courts of Common Pleas, and issues ordered to be framed 
by the Judge in equity cases in said Courts, it shall be the duty of the Clerk to 
furnish the parties, or their attorneys, with a list of twenty of the jurors to be 
drawn and selected by ballot from the whole number of jurors who are in at- 
tendance, the names on said lists to be numbered from one to twenty, and be 
stricken off by numbers in the same manner as the regular panels of jurors in 
said Courts have been heretofore formed, from which said list the parties, or 
their attorneys, shall alternately strike, until there shall be but twelve left, 
which shall constitute the jury to try the case or issue. In all cases the plaintiff 
shall have the first strike, and, in all civil cases hereafter tried in the Courts of 
Common Pleas of this State, any party shall have the right to demand a panel 
of twenty competent and impartial jurors from which to strike a jury. When 
the list aforesaid is prepared by the Clerk and presented to the parties, or their 
attorneys, objection for cause must be made before striking, and, if any objec- 
tions are sustained, the Clerk must fill up the list before the same is stricken : 
Provided, That after the jury has been struck, as herein provided, if it be dis- 
covered that any one or more of the jurors whose names remain upon the jury 
list are disqualified for any cause, the Clerk shall furnish the parties, or their 
attorneys, with an additional list of three times as many jurors as may be found 
to be disqualified, to be drawn as the first list was drawn, from which the parties, 
or their attorneys shall alternately strike, until there shall be left the number 
necessary to empanel the panel. Should the jury, charged with any case, be 
delayed in rendering their verdict, so that they could not be present to be 
drawn from in making the list to form a second jury, then the Clerk shall pre- 
sent to the parties, or their attorneys, a list containing the names of twenty 
jurors to be drawn by the Clerk from the remaining jurors in the same manner 
as provided in this Section, from which list the parties, or their attorneys, shall 
alternately strike, as hereinbefore provided, until twelve are left, which shall 
constitute the jury. In all cases of default, where it may be necessary to have the 
verdict of a jury, or in the trial of cases when the parties, or their attorneys, 
shaU waive the right to strike a jury, the Clerk shall, under the direction of the 
Judge, draw and empanel a jury, who shall pass upon such matters as may be 



§ 626 Code of Civil Procedure 172 

submitted to them in default eases, or the trial of such cases, when the parties 

have waived the right to strike the jury, as stated in this Section. 

Civ. P. '22, § 574; Civ. '12, § 4042; Civ. '02, § 2940; 1901, XXIII, 633; 1902, XXIII, 
1069 ; 1904, XXIV, 413 ; 1909, XXVI, 48. 

§ 626. How Foreman of Jury Selected. — The foreman of each jury after 

being thus empaneled, may be appointed by the Court, or the jury may retire 

and choose their foreman. 

Civ. P. '22, § 575; Civ. '12, § 4043; Civ. '02, § 2941; G. S. 2253; R. S. 2396; 1905, 
XXIV, 846. 

§ 627. When Petit Jurors may be Discharged. — All jurors summoned to 
serve at any term of the Courts of General Sessions or Common Pleas may be 
held beyond the period for which they were summoned until all cases in both 
of said Courts to be tried by jury are disposed of, or until another jury shall 
have been empaneled to try such cases : Provided, That nothing contained in this 
Section shall apply to Courts of General Sessions and Common Pleas for York 
County. 

Civ. P. '22, § 576 ; Civ. '12, § 4044 ; Civ. '02, § 2942 ; 1896, XXII, 18. 



ARTICLE 4 
Objection to Jurors 

628. Examination by Court. 631. Irregularity in Drawing, etc. 

629. Liability to Pay Taxes no Objection. 632. Gratuity to Juror. 

630. Objections to be made before Em- 633. Procedure upon Failure to Agree, 
paneling. 

« 

§ 628. Jurors May Be Examined by Court — If not Indifferent, Shall Be 
Set Aside. — The Court shall, on motion of either party in the suit, examine, 
on oath, any person who is called as a juror therein, to know whether he is re- 
lated to either party, or has any interest in the cause, or has expressed or 
formed any opinion, or is sensible of any bias or prejudice therein, and the 
party objecting to the juror may introduce any other competent evidence in 
support of the objection. If it appears to the Court that the juror is not indif- 
ferent in the cause, he shall be placed aside as to the trial of that cause, and 
another shall be called. 

Civ. P. '22, § 577 ; Civ. '12, § 4045 ; Civ. '02, § 2944 ; G. S. 2261 ; R. S. 2403 ; 1797, V, 358. 

§ 629. In Penal Actions, Liability to Pay Taxes Ho Objection — In indict- 
ments and penal actions for the recovery of a sum of money, or other thing 
forfeited, it shall not be a cause of challenge to a juror that he is liable to pay 
taxes in any county, city or town which may be benefited by such recovery. 

Civ. P. '22, § .578; Civ. '12. § 4046; Civ. '02, § 2945; G.\ S. 2264; R. S 2405; 1871, 
XIV, 693. 

§ 630. When Objections to Jurors Must Be Made. — All objections to jurors 
called to try prosecutions, or actions, or issues, or questions arising out of ac- 
tions or special proceedings in the various Courts of this State, if not made be- 
fore the juror is empaneled for or charged with the trial of such prosecution, or 
action, or issue, or question arising out of actions or special proceedings, shall 
be deemed waived ; and if made thereafter shall be of none effect. 

Civ. P. '22, § 579 ; Civ. '12, § 4047 ; Civ. '02, § 2946 ; G. S. 2265 ; R. S. 2406 ; 1871', XIV, 
693 ; 1899, XXIII, 39. 

§ 631. Irregularity in Venire Drawing, etc., not to Affect Verdict, Except 
in Certain Cases. — No irregularity in any writ of venire facias, or in the draw- 



173 Code of Civil Procedure § 632 

ing, summoning, returning or empaneling of jurors, shall be sufficient to set 
aside the verdict, unless the party making the objection was injured by the 
irregularity, or unless the objection was made before the returning of the 
verdict. 

Civ. P. '22, § 580 ; Civ. '12, § 4048 ; Civ. '02, § 2947 ; G. S. 2266 ; R. S. 2407 ; 1797, V, 358. 

§ 632. Verdict May Be Set Aside on Gratuity Given to Juror by Party. — If 

either party in a case in which a verdict is returned during the same term of the 
Court, before the trial, gives to any of the jurors who try the cause anything 
by way of treat or gratuity, the Court may, on the motion of the adverse party, 
set aside the verdict and award a new trial of the cause. 

Civ. P. '22, § 581 ; Civ. '12, § 4049 ; Civ. '02, § 2948 ; G. iS. 2267 ; R. S. 2408 ; 1797, V, 358. 

§ 633. Jury Failing to Agree, Course to Be Pursued. — When a jury, after 
due and thorough deliberation upon any cause, return into Court without hav- 
ing agreed upon a verdict, the Court may state anew the evidence, or any part 
of it, and explain to them anew the law applicable to the case, and may send 
them out for further deliberation; but if they return a second time without 
having agreed upon a verdict, they shall not be sent out again without their own 
consent unless they shall ask from the Court some further explanation of the 
law. 

Civ. P. '22, § 582 ; Civ. '12, § 4050 ; Civ. '02, § 2949 ; G. S. 2268 ; R. S. 2409 ; 1797, V, 358. 



ARTICLE 5 
Miscellaneous Provisions 

634. View of Place or Property. 637. Power of Coroners, Clerks or Magis- 

635. Penalty for Non-attendance. trates not Affected. 

636. Penalty for Neglect of Duty in Draw- 638. Feeding of Jurors, 
ing Jurors. 

§ 634. Jury May View Place, Property or Thing in Question — Proviso. — 

The jury in any case may, at the request of either party, be taken to view the 
place or premises in question, or any property, matter, or thing, relating to the 
controversy between the parties, when it appears to the Court that such view is 
necessary to a just decision : Provided, The party making the motion advances 
a sum sufficient to pay the actual expenses of the jury and the officers who at- 
tend them in taking the view, which expenses shall be afterwards taxed like 
other legal costs, if the party who advanced them prevails in the suit. 

Civ. P. '22, § 583; Civ. '12, § 4051; Civ. '02, § 2950; G. S. 2271; R. S. 2410; 1871, XIV, 
693. 

§ 635. Penalty for Non- Attendance. — If a person duly drawn and sum- 
moned to attend as a juror in any Court neglects to attend, without sufficient 
excuse, he shall pay a fine not exceeding twenty dollars, which shall be imposed 
by the Court to which the juror was summoned, and shall be paid into the 
County Treasury. 

Civ. P. '22, § 584 ; Civ. '12, § 4052 ; Civ. '02, § 2951 ; G. S. 2272 ; R. S. 2411 ; 1871, XIV, 
694. 

§ 636. Penalty for Neglect of Duty in Drawing Jurors. — When, by neglect 
of any of the duties required by this Chapter to be performed by any of the of- 
ficers or persons herein mentioned, the jurors to be returned from any place are 
not duly drawn and summoned to attend the Court, every person guilty of 
such neglect shall pay a fine not exceeding one hundred dollars, to be imposed 



§ 637 Code of Civil Procedure 174 

by the same Court, to the use of the county in which the offense was com- 
mitted. 

Civ. P. '22, § 585; Civ. '12, § 4053; Civ. '02, § 2952; G. S. 2273; R. S. 2412; 1871, 
XIV, 694. 

§ 637. Power and Duty of Coroners, Clerks or Magistrates, to Summon 
Jurors. — Nothing contained in this Chapter shall affect the power and duty 
of Coroners, Clerks, or Magistrates, to summon and empanel jurors, when au- 
thorized by other provisions of law. 

Civ. P. '22, § 586 ; Civ. '12, § 4054 ; Civ. '02, § 2953 ; G. S. 2274 ; R. S. 2413 ; 1871, XIV, 
693. 

§ 638. Feeding of Juries to be Paid by County. — Whenever any Circuit 
Judge shall order food to be furnished by the Sheriff to any jury charged with 
the consideration of a case, the expenses connected therewith shall be paid by 
the County Commissioners of the county in which such case is being tried, upon 
presentation of the bill of the Sheriff, certified as correct by the presiding Judge. 

Civ. P. '22, § 587 ; Civ. P. '12, § 4055 ; Civ. P. '02, 2954 ; ; R. S. 2414 ; 1891, XX, 1053. 



CHAPTER 4 

Trial by the Court 

639. Waiver of Trial by Jury. 641. Exceptions to Decision. 

640. Trial by the Court. 642. Procedure upon Judgment on Issue 

of. Law. 

§ 639. Trial by Jury — How Waived. — Trial by jury in the Court of Com- 
mon Pleas may be waived by the several parties to an issue of fact in actions on 
contract; and with the assent of the Court in other actions, in the manner fol- 
lowing : 

(1) By failing to appear at the trial. 

(2) By written consent, in person, or by attorney, filed with the Clerk. 

(3) By oral consent in open Court, entered in the minutes. 
Civ. P. '22, § 588 ; Civ. P. '12, § 326 ; Civ. P. '02, § 288 ; 1870, XIV, § 290. 

§ 640. Trial by Court — Judgment — How Given. — Upon the trial of a ques- 
tion of fact by the Court, its decision shall be given in writing, and shall contain 
a statement of the facts found, and the conclusions of law, separately; and 
upon a trial of an issue of law, the decision shall be made in the same manner, 
stating the conclusions of law. Such decision shall be filed with the Clerk with- 
in sixty days after the Court at which the trial took place. Judgment upon the 
decision shall be entered accordingly. 

Civ. P. '22, § 589 ; Civ. P. '12, § 327 ; Civ. P. '02, § 289 ; 1870, XIV, § 291. 

§ 641. Exceptions — How and When Taken — Judgment at General Term. 

— (1) For the purpose of an appeal, either party may except to a decision on 
a matter of law arising upon such trial, within ten days after written notice of 
the filing of the decision, order, or decree, as provided in Sections 772 and 773 : 
Provided, however, That where the decision filed under Section 640 does not 
authorize a final judgment, but directs further proceedings before a referee or 
otherwise, either party may move for a new trial at the next term, and for that 
purpose may, within ten days after notice of the decision being filed, except' 
thereto, and make a case or exceptions as above provided in cases of an appeal. 
(2) And either party desiring a review upon the evidence appearing on the 
trial, either of the questions of fact or of law, may, at any time within ten days 



175 Code of Civil Procedure § 642 

after notice of the judgment, or within such time as may be prescribed by the 
rules of the Court, make a case or exceptions, in like manner as upon a trial by 
jury, except that the Judge, in settling the case, must briefly specify the facts 
found by him, and his conclusions of law. 

Civ. P. '22, § 590 ; Civ. P. '12, § 328 ; Civ. P. '02, § 290 ; 1870, XIV, § 292. 

§ 642. Proceedings Upon Judgment on Issue of Law. — On a judgment for 
the plaintiff upon an issue of law, the plaintiff may proceed in the manner pre- 
scribed by Section 577, upon the failure of the defendant to answer, where the 
summons was personally served. If judgment be for the defendant, upon an 
issue of law, and if the taking of an account or the proof of any fact be neces- 
sary to enable the Court to complete the judgment, a reference or assessment 
by jury may be ordered, as in that Section provided. 

Civ. P. '22, § 591 ; Civ. P. '12, § 329 ; Civ. P. '02, § 291 ; 1870, XIV, § 293. 



CHAPTER 5 

Trial by Referee 

•643. Issues Referable by Consent. 645. Mode of Trial and Review. 

644. Compulsory Reference. 646. Appointment and Duty of Referees. 

647. Referees in Saluda County. 

§ 643. All Issues Referable by Consent. — All or any of the issues in the 
action, whether of fact or of law, or both, may be referred upon the written con- 
sent of the parties and guardian ad litem of infants ; and, in such case, the or- 
der, if taken in vacation, may be made by the Clerk. The said issues may also be 
referred by the Clerk in default cases. 

Civ. P. '22, § 592 ; Civ. P. '12, § 330 ; Civ. P. '02, § 292 ; R. S. 1872, 180, § 15 ; 1925, 
XXXIV, 89. 

§ 644, When Reference May Be Compulsorily Ordered. — Where the parties 
do not consent, the Court may, upon application of either, or its own motion, 
direct a reference in the following cases : 

(1) In all equitable actions and of equitable issues in actions at law. The 
order may be general of all issues of both law and fact, or may be so limited as 
the. Court may direct: Provided, That this Section shall not be construed so as 
to deprive any party of a trial by jury of any case or issue upon which he is 
entitled to a trial by jury as a matter of right under the present practice. 

(2) Where the taking of an account shall be necessary for the information 
of the Court, before judgment, or for carrying a judgment or order into effect, or 

(3) Where a question of fact, other than upon the pleadings, shall arise, upon 
motion or otherwise, in any stage of the action. 

(4) The reference shall be made in all counties in which the office of Master 

has been established, to a Master; in all other counties the reference shall be 

made to such person or persons as shall be appointed as provided in Section 646 : 

Provided, That in the Counties of Anderson and Colleton the reference shall be 

to the Judge of Probate for said counties, respectively. 

Civ. P. '22, § 593 ; Civ. P. '12. § 331 ; Civ. P. '02, § 293 ; Civ. P. '12, § 1372 ; R. IS. 1872, 
180, § 15; 1918, XXX, 833; 1928, XXXV, 1149. 

§ 645. Mode of Trial— Effect of Report— Review.— The trial by a Master, 
or by referees, shall be conducted in the same manner and on similar notice as 
a trial by the Court. Every referee appointed pursuant to this Code of Pro- 
cedure shall have power to administer oaths in any proceedings before him, and 



§ 645 Code of Civil Procedure 176 

shall have, generally, the powers vested in a referee by law. Masters and ref- 
erees shall have the same power to grant adjournments, and to allow amend- 
ments to any pleadings and to the summons, as the Court, upon such trial, upon 
the same terms, and with the like effect. They shall have the same power to pre- 
serve order and punish all violations thereof upon such trial, and to compel the 
attendance of witnesses before them by attachment, and to punish them as for 
contempt for non-attendance or refusal to be sworn or testify, as is possessed by 
the Court. They must state the facts found, and the conclusions of law, sep- 
arately; and their decision must be given, and may be excepted to and reviewed 
in like manner, and with like effect, in all respects, as in cases of appeal under 
Section 641 ; and they may in like manner settle a case or exceptions. When the 
reference is to report the facts, the report shall have the effect of a special 
verdict. 

Must Decide Objections to Evidence — And Report Separately. — Masters 
and referees to whom causes may be referred, whether to hear and decide the 
whole issues or to report upon any specific question of fact, or upon the facts 
generally, shall hear and decide any objection which may be made to the com- 
petency, relevancy, or admissibility of any testimony which may be offered ; and 
in case, upon hearing such testimony, the Master or referee shall decide the 
same inadmissible, he shall take the same, subject to such objection, but shall 
not incorporate such testimony, so held, by him inadmissible with the rest of the 
testimony, in the body of his report, but shall append the same separately at 
the end of his report. 

May Employ Stenographer. — The Master or referee, at the request of any 
party to a cause who may tender the necessary expenses incident thereto, may 
emply a competent stenographer to take testimony in such cause : Provided, 
That such expense shall not be taxed in the costs or included in the disburse- 
ments of the same. 

To Be Read and Signed by Witness — Testimony Taken by Stenographer. — 
Whenever any cause shall be referred to any Master or referee by any Court 
in this State, and testimony be taken therein, it shall be the duty of such Master 
or referee to reduce the testimony of the witnesses to writing and require the 
same to be read over and signed by the witness : Provided, however, That noth- 
ing herein contained shall be construed to prevent the use of stenographers for 
the purpose of taking testimony at such references,, or to require that the testi- 
mony so taken by such stenographers shall be read over to or signed by such 
witnesses. 

Time Prescribed for Report — Penalty — Extension of Time. — In all cases 
referred to Masters and referees by the Courts of Common Pleas, as now pro- 
vided by law, the Masters or referees shall make and file with the Clerks of the 
Courts of Common Pleas of their respective counties their reports within sixty 
days from the time the action shall be finally submitted to them, and in default 
thereof they shall not be entitled to any fees: Provided, That nothing herein 
contained shall prevent parties to said action, or their attorneys, from extending 
the time by mutual consent in writing. 

When the case shall have been heard and decided upon the report of the ref- 
eree and exceptions, the decision may be reviewed on appeal to the Supreme 
Court. 

Civ. P. '22, § 594; Civ. P. '12, § 332; Civ. P. '02, § 294; 1870, XIV, § 296; 1884, XVII, 
733 ; 1889, XX, 294. 



177 Code of Civil Procedure § 646 

§ 646. Referees — How Chosen — Report. — In all cases of reference to ref- 
erees, the parties to the issues in the action, except when the defendant is an 
infant or an absentee, may agree in writing upon a person or persons, not exceed- 
ing three, and a reference shall be ordered to him or them, and to no other per- 
son or persons. And if such parties do not agree, the Court shall appoint one 
or more referees, not more than three, who shall be free from exception. And 
no person shall be appointed referee to whom all parties in the action shall ob- 
ject. And no Judge or Justice of any Court shall sit as referee in any action 
pending in the Court of which he is Judge or Justice, and not already referred, 
unless the parties otherwise stipulate. The referee or referees shall make and 
deliver a report within sixty days from the time the action shall be finally sub- 
mitted; and in default thereof, and before the report is delivered, either party 
may serve notice upon the opposite party that he elects to end the reference ; and 
thereupon the action shall proceed as though no reference had been ordered, and 
the referees shall not, in such case, be entitled to any fees. 

Civ. P. '22, § 595 ; Civ. P. '12, § 333 ; Civ. P. '02, § 295 ; 1870, XIV, § 297. 

§ 647. Referees in Saluda County — Proviso. — The same power and au- 
thority now given, or that may hereafter be given, to Masters in Equity, is 
hereby conferred upon special referees in Saluda County : Provided, That the 
Court appointing said special referees may limit their power and authority by 
a written order. 

Civ. P. '22, § 596 ; Civ. P. '12, § 334 ; 1911, XXVII, 85. 



CHAPTER 6 

Judgments 

648. Judgment Determines Rights of 651. Declaratory Judgments. 
Parties. 652. Action for Recovery of Personalty. 

649. Relief not to Exceed Demand. 653^. Abstract of Judgments. 

650. Measure of Damages. 655. Judgment Roll and Docketing. 

§ 648. Judgment May Be for or against any of Parties to Action. — (1) 

Judgment may be given for or against one or more of several plaintiffs, and 
for or against one or more of several defendants, and it may determine the 
ultimate rights of the parties on each side, as between themselves, 

(2) Affirmative Kelief to Defendant. — And it may grant to the defendant 
any affirmative relief to which he may be entitled. 

(3) Judgment Against One or More of Defendants. — In an action against 
several defendants, the Court may, in its discretion, render judgment against 
one or more of them, leaving the action to proceed against the others, when- 
ever a several judgment may be proper, 

(4) Complaint May Be Dismissed for Neglect to Prosecute Action. — The 
Court may also dismiss the complaint, with costs in favor of one or more de- 
fendants, in case of unreasonable neglect on the part of the plaintiff to serve 
the summons on other defendants, or to proceed in the cause against the de- 
fendant or defendants served. 

(5) Damages and Costs Against Married Women. — In an action brought by 
or against a married woman, judgment may be given against her as well for costs 
as for damages, or both for such costs and for such damages, in the same man- 
ner as against other persons, to be levied and collected of her separate estate, 
and not otherwise. 

Civ. P. '22, § 597 ; Civ. P. '12, § 335 ; Civ. P. '02, § 296 ; 1870, XIV, § 298. 



§ 649 Code op Civil Procedure 178 

§ 649. Relief to be Awarded to Plaintiff. — The relief granted to the plain- 
tiff, if there be no answer, cannot exceed that which he shall have demanded in 
his complaint, but in any other case, the Court may grant him any relief con- 
sistent with the case made by the complaint, and embraced within the issue. 

Civ. P. '22, § 598 ; Civ. P. '12, § 336 ; Civ. P. '02, § 297 ; 1870, XIV, § 299. 

§ 650. Rates of Damages where Damages are Recoverable. — Whenever 
damages are recoverable, the plaintiff may claim and recover, if he show himself 
entitled thereto, any rate of damages which he might have heretofore recovered 
for the same cause of action. 

Civ. P. '22, § .599 ; Civ. P. '12, § 337 ; Civ. P. '02, § 298 ; 1870, XIV, § 300. 

§ 651. Declaratory Judgments. — No action or proceeding in any Court of 
record wherein the construction of a deed, a will or written contract is sought 
or involved shall be open to the objection that a merely declaratory judgment, 
decree or order is sought, and the Court may make binding declarations of the 
rights of parties to such action or proceedings under such instruments whether 
other relief is or could be claimed or not. 

1922, XXXII, 967. 

§ 652. Judgment in Action for Recovery of Personal Property. — In an ac- 
tion to recover the possession of personal property, judgment for the plaintiff 
may be for the possession, or for the recovery of possession, or the value thereof, 
in case a delivery cannot be had, and of damages, both punitive and actual, for 
the detention. If the property have been delivered to the plaintiff, and the de- 
fendant claim a return thereof, judgment for the defendant may be for a return 
of the property, or the value thereof, in case a return cannot be had, and dam- 
ages, both actual and punitive, for taking and withholding the same : Provided, 
That where either party gives bond for said property, as provided by law, no 
punitive damages shall be allowed for anything occurring after the giving of 
the bond. 

Civ. P. '22, § 600 ; Civ. P. '12, § 338 ; Civ. P. '02, § 299 ; 1907, XXV, 483. 

§ 653. Clerk to Keep "Abstract of Judgments." — The Clerk shall keep 
among the records of the Court a book for the entry of judgments, to be called 
the ' ' Abstract of Judgments. ' ' 

Civ. P. '22, § 601 ; Civ. P. '12, § 339 ; Civ. P. '02, § 300 ; 1839, XI, 103, § 8. 

§ 654. Judgment to be Entered in "Abstract of Judgments" Index to 
Judgments. — In this book shall be entered each case wherein judgment may be 
signed, including each case in dower, partition and escheat, after judgment or 
final order, with separate columns, showing number of enrollment, names of 
parties, cause of action, attorney, date of judgment, amount of judgment, time 
of bearing interest, how judgment obtained, costs (separating attorney, clerk, 
sheriff', witness and total), kind of execution, date of issuing, Sheriff's return, 
when renewed, and satisfaction, together with an index, by the names of de- 
fendants, and a cross index by the names of plaintiffs, each alphabetically ar- 
ranged and kept in separate volumes, with the number of enrollment of judg- 
ment. And whenever judgment against any party plaintiff or defendant has 
been entered, the names of such party, and each of them, shall appear in the 
index, and the name of the party plaintiff or defendant in whose favor judg- 
ment has been entered, and each of them, shall appear in cross index. 

Civ. P. '22, § 602 ; Civ. P. '12, § 340 ; Civ. P. '02, § 301 ; 1897, XXII, 436. 

§ 655. Judgment Roll— Transcript of Judgment Filed in Any Other Coun- 
ty — Effect of. — Unless the party or his attorney shall furnish a judgment roll, 



179 Code of Civil Procedure § 656 

the Clerk, immediately after entering the judgment, shall attach together and 
file the following papers, which shall constitute the judgment roll : 

(1) In case the complaint be not answered by any defendant, the summons 
and complaint, or copies thereof, proof of service, and that no answer has been 
received, the report, if an}^, and a copy of the judgment. 

(2) In all other cases, the summons, pleadings, or copies thereof, and a copy 
of the judgment, with any verdict or report, the offer of the defendant, excep- 
tions, case and all orders and papers in any way involving the merits and neces- 
sarily affecting the judgment. 

A transcript of a final judgment of any Court of record of this State or of 

any District or Circuit Court of the United States within this State, directing 

in whole or in part, the payment of money, may be docketed with the Clerk of 

the Court of Common Pleas in any county, and when so docketed shall have 

the same force and effect as a judgment of that Court. Such transcript shall seL 

out the names of the parties, plaintiff and defendant, the attorneys of record, 

the date and amount of the judgment, the time from which interest is to be 

computed, and the amount of costs. 

Civ. P. '22, § 603 ; Civ. P. '12, § 341 ; Civ. P. '02, § 302 ; 1870, XIV, § 305 ; 1929, XXXVI, 
251. 



TITLE 9 

Witnesses and Evidence 

Chapter 1. Offer to Compromise, § 656. 

Chapter 2. Agreed Case, § 659. 

Chapter 3. Confession of Judgment, § 661. 

Chapter 4. Admission or Inspection of Writings, § 664. 

Chapter 5. Examination of Parties, § 665. 

Chapter 6. Attendance of Witnesses, § 674. 

Chapter 7. Examination of Witnesses, § 682. 

Chapter 8. Provisions Respecting Methods of Proof, § 700. 



CHAPTER 1 

Offer to Compromise 

656. Offer of Compromise. 657. Offer to Liquidate Damages. 

658. Effect of Offer. 

§ 656. Offer of Compromise. — The defendant may, at any time before the 
trial or verdict, serve upon the plaintiff an offer in writing to allow judgment 
to be taken against him for the sum or property, or to the effect therein specified, 
with costs. If the plaintiff accept the offer, and give notice thereof in writing 
within ten days, he may file the summons, complaint and offer, with an affidavit 
of notice of acceptance, and the Court shall direct judgment to be entered there- 
on accordingly. If the notice of acceptance be not given, the offer is to be deemed 
withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain 
a more favorable judgment, he cannot recover costs, but must pay the de- 
fendant's costs from the time of the offer; and in case the defendant shall set 
up a counterclaim in his answer to an amount greater than the plaintiff's claim, 
or sufficient to reduce the plaintiff's recovery below fifty dollars, tKen the plain- 
tiff may serve upon the defendant an offer in writing to allow judgment to be 



§ 657 Code of Civil Procedure 180 

taken against him for the amount specified, or to allow said counterclaim to the 
amount specified, with costs. If the defendant accept the offer, and give notice 
thereof in writing within ten days, he may enter judgment as above for the 
amount specified, if the offer entitled him to judgment, or the amount specified 
in said offer shall be allowed him in the trial of the action. If the notice of ac- 
ceptance be not given, the offer is to be deemed withdrawn, and cannot be giv- 
en in evidence ; and if the defendant fail to recover a more favorable judgment, 
or to establish his counterclaim for a greater amount than is specified in said 
offer, he cannot recover costs, but must pay the plaintiff's costs from the time 
of the offer. 

Civ. P. '22, § 686 ; Civ. P. '12, § 424 ; Civ. P. '02, § 386 ; 1870, XIV, § 402 ; 1873, XV, 
502, § 21. 

§ 657. Defendant May Offer to Liquidate Damages. — In an action arising 
on contract, the defendant may, with his answer, serve upon the plaintiff an 
offer in writing that, if he fail in his defense, the damges be assessed at a speci- 
fied sum; and if the plaintiff signify his acceptance thereof in writing, before 
trial, and on the trial have a verdict, the damages shall be assessed accordingly. 

Civ. P. '22, § 687 ; Civ. P. '12, § 425 ; Civ. P. '02, § 387 ; 1870, XIV, § 403. 

§ 658. Effect of Acceptance or Refusal of Offer. — If the plaintiff do not 
accept the offer, he shall prove his damages as if the offer had not been made, 
and shall not be permitted to give it in evidence. And if the damages assessed 
in his favor shall not exceed the sum mentioned in the offer, the defendant shall 
recover his costs incurred in consequence of any necessary preparation or de- 
fense in respect to the question of damages. 

Civ. P. '22, § 688 ; Civ. P. '12, § 426 ; Civ. P. '02, § 388 ; 1870, XIV, § 404. 



CHAPTER 2 
Agreed Case 

659. Submitting Controversy without Ac- 660. Judgment and Appeal. 
tion. 

§ 659. Controversy — How Submitted Without Action. — Parties to a matter 
in dispute, which may be the subject of a civil action, may, without action, agree 
upon a case containing the facts upon which the controversy depends, and pre- 
sent a submission of the same to any Court which would have jurisdiction 
if an action had been brought. But it must appear by affidavit that the con- 
troversy is real, and the proceedings in good faith, to determine the rights of 
the parties. The Court shall thereupon hear and determine the case, and render 
judgment thereon, as if an action were depending. 

Civ. P. '22, § 675 ; Civ. P. '12, § 413 ; Civ. P. '02, § 374 ; 1870, XIV, § 389. 

§ 660. Judgment — Entry Enforced or Appeal from. — Judgment shall be 
entered, as in other cases, but without costs for any proceeding prior to the 
trial. The case, the submission, and a copy of the judgment, shall constitute the 
judgment roll. The judgment may be enforced in the same manner as if it had 
been rendered in an action, and shall be subject to appeal in like manner. 

Civ. P. '22, § 676 ; Civ. P. '12, § 414 ; Civ. P. '02, § 376 ; 1870, XIV, § 391. 



181 Code of Civil Procedure § 661 

CHAPTER 3 

Confession of Judgment 

661. Confession of Judgment without Ac- 662. Contents of Written Statement, 
tion. 663. Judgment and Execution. 

§ 661. Judgment May Be Confessed for Debt Due or for Contingent Li- 
ability. — A judgment by confession may be entered, without action, either for 
money due, or to become due, or to secure any person against contingent liability 
on behalf of the defendant, or both, in the manner prescribed in this Chapter. 

Civ. P. '22, § 683 ; Civ. P. '12, § 421 ; Civ. P. '02, § 383 ; 1870, XIV, § 399. 

§ 662. Statement in Writing, and Form Thereof. — A statement in writing 
must be made and signed by the defendant, and verified by his oath, to the fol- 
lowing effect : 

(1) It must state the amount for which judgment may be entered, and au- 
thorize the entry of judgment therefor. 

(2) If it be for money due, or to become due, it must state concisely the facts 
out of which it arose, and must show that the sum confessed therefor is justly 
due, or to become due. 

(3) If it be for the purpose of securing the plaintiff against a contingent 
liability, it must state concisely the facts constituting the liability, and must 
show that the sum confessed therefor does not exceed the same. 

Civ. P. '22, § 684 ; Civ. P. '12, § 422 ; Civ. P. '02, § 384 ; 1870, XIV, 400. 

§ 663. Judgment and Execution. — The statement may be filed with the 
Clerk of the Court of Common Pleas, or with a Magistrate, if the amount for 
which judgment is confessed shall not exceed one hundred dollars, who shall 
enter a judgment endorsed upon the statement for the amount confessed, with 
five dollars, plaintiff's attorney's costs, when the confession is entered by an 
attornej^ and the usual fees provided by law to the Clerk of the Court of Com- 
mon Pleas or Magistrate, as the case may be, for entering up judgments and 
issuing executions in any cases, together with any necessary disbursements of 
the plaintiff. The statement and affidavit, with the judgment endorsed, shall 
thereupon become the judgment roll. Executions may be issued and enforced 
thereon in the same manner as upon judgments in other cases in such Courts. 
When the debt for which the judgment is entered is not all due, or is payable 
in installments, and the installments are not all due, the execution m.ay issue 
upon such judgment for the collection of such installments as have become due, 
and shall be in the usual form, but shall have endorsed thereon, by the attorney 
or person issuing the same, a direction to the Sheriff to collect the amount due 
on such judgment, with interest and costs, which amount shall be stated, with 
interest thereon, and the costs of said judgment. Notwithstanding the issue and 
collection of such execution, the judgment shall remain as security for the in- 
stallments thereafter to become due, and whenever any further installments 
become due, execution may, in like manner, be issued for the collection and 
enforcement of the same. 

Civ. P. '22, § 685 ; Civ. P. '12, § 423 ; Civ. P. '02, § 385 ; 1870, XIV. § 401 ; 1884, XVIII, 
693. 



§ 664 ' i' Code of Civil Procedure 182 

CHAPTER 4 

Admission or Inspection of Writings 

§ 664. Inspection and Copy of Books Papers, Etc. — How Obtained. — 

Either party may exhibit to the other, or to his attorney, at any time before the 
trial, any paper material to the action, and request an admission in writing of its 
genuineness. If the adverse party, or his attorney, fail to give the admission, 
within four days after the request, and if the party exhibiting the paper be 
afterwards put to expense in order to prove its genuineness, and the same be 
finally proved or admitted on the trial, such expense shall be paid by the party 
refusing the admission, unless it appear to the satisfaction of the Court that 
there were good reasons for the refusal. The Court before which an action is pend- 
ing, or a Judge or Justice thereof may, in their discretion, and upon due notice, 
order either party to give to the other, within a specified time, an inspection 
and copy, or permission to take a copy, of any books, papers, and documents 
in his possession or under his control, containing evidence relating to the merits 
of the action or the defense therein. If compliance with the order be refused, the 
Court, on motion, may exclude the paper from being given in evidence, or punish 
the party refusing, or both. 

Civ. P. '22, § 689 ; Civ. P. '12, § 427 ; Civ. P. '02, § 389 ; 1870, XIV, § 405. 



CHAPTER 5 

Examination of Parties 

665. Action for Discovery Abolislied. 671. Testimony not Responsive to In- 

666. Examination of Party by Adversary. quiries. 

667. Examination before Trial. 672. Person for Wliose Benefit Action is 

668. Compulsory Attendance. Brought or Defended. 

669. Rebuttal of Testimony. 673. Examination of Co-Plaintiff or Co- 

670. Effect of Refusal to Testify. Defendant. 

§ 665. Action for Discovery Abolished. — No action to obtain discovery 
under oath, in aid of the prosecution or defense of another action, shall be 
allowed, nor shall any examination of a party be had on behalf of the adverse 
party, except in the manner prescribed by this Chapter, 

Civ. P. '22, § 690 ; Civ. P. '12, § 428 ; Civ. P. '02, § 390 ; 1870, XIV, § 406. 

§ 666. Party May Examine His Adversary as a Witness. — A party to an 
action may be examined as a witness, at the instance of the adverse party, or 
of any one of several adverse parties, and for that purpose may be compelled 
in the same manner, and subject to the same rules of examination as any other 
witness, to testify, either at the trial, or conditionally, or upon commission. 

Civ. P. '22, § 691 ; Civ. P. '12, § 429 ; Civ. P. '02, § 391 ; 1870, XIV, § 407. 

§ 667. Examination of Adversary Before Trial — Proceedings Therefor. — 

The examination, instead of being had at the trial, as provided in the last section, 
may be had at any time before trial, at the option of the party claiming it, be- 
fore a Judge of the Court, on a previous notice to the party to be examined, 
and any other adverse party, of at least five days, unless, for good cause shown, 
the Judge order otherwise. But the party to be examined shall not be compelled 
to attend in any other countj^ than that of his residence, or where he may be 
served with a summons for his attendance ; nor unless it be upon the order of 
a Judge of the Court granted after four days' notice, and upon good and suf- 
ficient cause being shown therefor. 

Civ. P. '22, § 692; Civ. P. '12, § 430; Civ. P. '02, § 392; 1870, XIV, § 408; 1923, 
XXXIII, 170. 



183 Code of Civil Procedure § 668 

§ 668. Adverse Party — How Compelled to Attend. — The party to be ex- 
amined, as in the last Section provided, may be compelled to attend in the same 
manner as a witness who is to be examined conditionally; and the examination 
shall be taken and filed by the Judge in like manner, and may be read by either 
party on the trial. 

Civ. P. '22, § 693; Civ. P. '12, § 431; Civ. P. '02, § 393; 1870, XIV, § 409. 

§ 669. Testimony of Party May Be Rebutted. — The examination of the 
party, thus taken, may be rebutted by adverse testimony. 

Civ. P. '22, § 694 ; Civ. P. '12, § 432 ; Civ. P. '02, § 394 ; 1870, XIV, § 410. 

§ 670. Effect of Refusal to Testify. — If a party refuses to attend and testify, 
as in the last four Sections provided, he may be punished as for a contempt, and 
his complaint, answer, or reply may be stricken out. 

Civ. P. '22, § 695 ; Civ. P. '12, § 433 ; Civ. P. '02, § 395 ; 1870, XIV, § 411. 

§ 671. Rebuttal of Testimony Not Responsive to the Inquiries. — A party 
examined by an adverse party, as in this Chapter provided, may be examined 
on his own behalf, subject to the same rules of examination as other witnesses. 
But if he testify to any new matter, not responsive to the inquiries put to him 
by the adverse party, or necessary to explain or qualify his answers thereto, 
or discharge when his answers would charge himself, such adverse party may 
offer himself as a witness on his own behalf in respect to such new matter, sub- 
ject to the same rules of examination as other witnesses, and shall be so received. 

Civ. P. '22, § 696 ; Civ. P. '12, § 434 ; Civ. P. '02, § 396 ; 1870, XIV, § 412. 

§ 672. Persons for Whom Action Is Brought or Defended May Be Ex- 
amined. — A person for whose immediate benefit the action is prosecuted or 
defended, though not a party to the action, may be examined as a witness, in 
the same manner and subject to the same rules of examination as if he were 
named as a party. 

Civ. P. '22, § 697 ; Civ. P. '12, § 435 ; Civ. P. '02, § 397 ; 1870, XIV, § 413. 

§ 673. Examination of Co-Plaintiff or Co-Defendant. — A party may be ex- 
amined on behalf of his co-plaintiff, or of a co-defendant, as to any matter in 
which he is not jointly interested or liable with such co-plaintiff or co-defendant, 
and. as to which a separate and not joint verdict or judgment can be rendered. 
And he may be compelled to attend in the same manner as at the instance of an 
adverse party; but the examination thus taken shall not be used in the behalf 
of the party examined. And whenever, in the case mentioned in Sections 666 and 
667, one of the several plaintiffs or defendants who are joint contractors, or are 
united in interest, is examined by the adverse party, the other of such plain- 
tiffs or defendants may offer himself as a witness to the same cause of action 
or defense, and shall be so received. 

Civ. P. '22, § 698 ; Civ. P. '12, § 436 ; Civ. P. '02, § 398 ; 1870, XIV, § 414. 



CHAPTER 6 

Attendance of Witnesses 

674. Allowance in Bill of Costs. 678. Pay in Magistrate's Courts. 

675. Clerks to Subpoena Witnesses. 679. Liability for Failure to Attend. 

676. Witness Living in Another County. 680. Refusal to Testify. 

677. Pay of Witnesses. 681. Prisoners as Witnesses. 



§ 674 Code of Civil Procedure 184 

§ 674. Allowance of Charge for Witness in Bill of Costs. — In any bill of 
costs there shall not be allowed the charge of more than three witnesses to the 
proof of any one particular matter of fact. 

Civ. P. '22, § 699 ; Civ. P. '12, § 3964 ; Civ. P. '02, § 2860 ; G. S. 2192 ; R. S. 2324 ; 1755, 
VII, 219. 

§ 675. Clerks of Courts to Subpoena Witnesses — ^What to Be Expressed in 

Subpoena. — The Clerk of every Circuit Court shall, upon the request of either 

party, issue one or more subpoena or subpoenas for any person or persons to 

attend as witnesses in any cause or matter depending in the same, expressing in 

every subpoena the time and place where the witnesses are to appear, the names 

of the parties to the suit or cause wherein they are to give evidence, and at 

whose request they are summoned. 

Civ. P. '22, § 700; Civ. '12, § 3965; Civ. '02, § 2861; G. S. 2193; R. S. 2325; 1755, 
VII, 219. 

§ 676. How Subpoenaed When Living in Another County. — If any wit- 
ness shall be an inhabitant of another county, the Clerk shall issue a subpoena 
directed to the Sheriff of such county where such witness usually resides, which 
shall be by such officer executed and returned to the office whence the same is- 
sued. 

Civ. P. '22, § 701; Civ. '12, § 3966; Civ. '02, § 2862; G. S. 2194; R. S. 2326; 1755, 
VII, 219. 

§ 677. Pay of Witnesses in Civil Cases — To Be Paid by Party Summoning. 

— Every person summoned to appear as a witness, in the Common Pleas or 
Probate Courts, shall be paid, by the person or persons at whose suit the sum- 
mons issued, one dollar for every day's attendance on such summons, and, also, 
the sum of five cents per mile for coming to Court, and the same for returning, 
to be computed by the shortest practical route to be traveled over any regular 
established highway, besides ferriages, to be paid by the party summoning such 
witness, which said allowances shall be ordered by the Court, upon motion, and 
a copy thereof issued and tested by the Clerk, at any time, upon request. 

Civ. P. '22. § 702 ; Civ. '12, § 3967 ; Civ. '02, § 2863 ; G. S. 2195 ; R. S. 2327 ; 1755. VII, 
219; 1721, VII, 170; 1790, XIV, 399. 

§ 678. Pay of Witnesses in Magistrate's Courts. — Witnesses summoned to 

testify in civil causes in Magistrate 's Courts shall receive fifty cents per day for 

each day's attendance, and the same mileage as is allowed in the Circuit Courts. 

Civ. P. '22, § 703 ; Civ. '12, § 3968 ; Civ. '02, § 2864 ; G. S. 2196 ; R. S. 2328 ; 1874, XV, 
608. 

§ 679. Liability for Fines for Contempt and Damages Sustained by Fail- 
ure to Attend. — If any person summoned as aforesaid, or summoned to attend 
before commissioners appointed to take his or her examination and deposition, 
shall fail to attend accordingly, he or she so failing shall be fined by the Court 
for a contempt, and shall be liable to the action of such party at the common 
law for all damages sustained for want of such witness' testimony; but if the 
person so failing to attend shall, at the Court to which the summons is return- 
able, or at the next succeeding Court show cause satisfactory to the Court of 
his or her disability to attend at the time he or she ought to have appeared, then 
no fine or forfeiture shall be incurred by such failure. 

Civ. P. '22, § 704 ; Civ. '12, § 3969 ; Civ. '02, § 2865 ; G. S. 2198 ; R. S. 2329 ; 1785, VII, 
219 ; 1794, V, 249. 

§ 680. Penalty for Refusal to Give Evidence or Answer Interrogatories. — 

If any person summoned as a witness, upon his or her appearance before the 
Court, or before commissioners appointed to take his or her examination and 



185 Code of Civil Procedure § 681 

deposition, or other officer authorized by law, shall refuse to give evidence, or 

answer to the interrogatories and cross-interrogatories, or any of them, annexed 

to the commission, on oath, affirmation, or otherwise (as the case may be), to the 

best of his or her knowledge, every person so refusing shall be committed to the 

common jail, there to remain until he or she shall give such evidence. 

Civ. P. '22, § 705 ; Civ. '12, § 3970 ; Civ. '02, § 2866 ; G. S. 2190 ; R. S. 2330 ; 1785. VII, 
219 ; 1794, V, 249. 

§ 681. Prisoners — How to Be Brought Into Court as Witnesses. — ^When- 
ever it shall be necessary to bring any prisoner into Court as a witness in any 
case, it shall be lawful for the presiding Judge to order such prisoner to be 
brought into Court, without the necessity of a writ of habeas corpus; and when 
the said prisoner shall have given his evidence, to cause him to be remanded 
to the custody of the officer to whose keeping he shall have been originally com- 
mitted. 

Civ. P. '22, § 706 ; Civ. '12, § 3971 ; Civ. '02, § 2867 ; G. iS. 2201 ; R. S. 2331 ; 1808, V, 571. 



CHAPTER 7 

Examination of Witnesses 

Article 1. General Provisions, § 682. 

Article 2. Examination By Comm-ission, § 684. 

Article 3. Examination Before Clerk and Depositions De Bene Esse, § 694. 



ARTICLE 1 

General Provisions 

682. Interest of Witness no Disqualification. 683. Parties Competent except in Stated 

Cases. 

§ 682. Interest Not to Exclude Witness. — No person offered as a witness 
shall be excluded by reason of his interest in the event of the action. 
Civ. P. '22, § 707 ; Civ. P. '12, § 437 ; Civ. P. '02, § 399 ; 1870, XIV, § 414. 

§ 683. Parties to Actions and Special Proceedings Competent Witnesses 
Except in Certain Cases. — A party to an action or special proceeding in any 
and all Courts, and before any and all officers and persons acting judicially, 
may be examined as a witness on his own behalf, or in behalf of any other party, 
conditionally, on commission, and upon the trial or hearing in the case, in the 
same manner and subject to the same rules of examination as any other witness : 
Provided, however, That no party to the action or proceeding, nor any person 
who has a legal or equitable interest which may be affected by the event of the 
action or proceeding, nor any person who, previous to such examination, has had 
such an interest, however the same may have been transferred to, or come to 
the party to the action or proceeding, nor any assignor of anything in con- 
troversy in the action, shall be examined in regard to any transaction or com- 
munication between such witness and a person at the time of such examination, 
deceased, insane, or lunatic, as a witness against a party then prosecuting or 
defending the action as executor, administrator, heir at law, next of kin, assignee, 
legatee, devisee, or survivor of such deceased person, or as assignee or committee 
of such insane person or lunatic, when such examination, or any judgment or 
determination in such action or proceeding, can in any manner affect the interest 
of such witness or the interest previously owned or represented by him. But 



§. 684 Code of Civil Procedure 186 

when such executor, administrator, heir at law, next of kin, assignee, legatee, 
devisee, survivor, or committee, shall be examined on his own behalf in regard 
to such transaction or communication or the testimony of such deceased or in- 
sane person or lunatic, in regard to such transaction or communication (however 
the same may have been perpetuated or made competent), shall be given in 
evidence on the trial or hearing in behalf of such executor, administrator, heir 
at law, next of kin, assignee, legatee, devisee, survivor, or committee, then all 
other persons not otherwise rendered incompetent shall be made competent 
witnesses in relation to such transaction or communication on said trial or hear- 
ing. Nothing contained in Section 691 of this Code of Procedure shall be held or 
construed to effect or restrain the operation of this Section. 

(1) In any trial or inquiry in any suit, action, or proceeding in any Court, 
or before any person having, by law, or consent of parties, authority to examine 
witnesses or hear evidence, the husband or wife of any party thereto, or of any 
person in whose behalf any such suit, action, or proceeding is brought, prosecuted, 
opposed, or defended, shall, except as hereinafter stated, be competent and com- 
pellable to give evidence, the same as any other witness, on behalf of any party 
to such suit, action, or proceeding. 

(2) No husband or wife shall be compellable to disclose any confidential com- 
munication made by one to the other during their marriage. 

Civ. P. '22, § 708 ; Civ. P. '12, § 438 ; Civ. P. '02, § 400 ; 1870, XIV, § 415. 



ARTICLE 2 
Examination By Commission 

684. Judge or Clerk may Grant Commission. 688-9. Subpoena. 

685. Service of Notice of Application. 689. Fee of Witness. 

686. Compulsory Attendance of Witness. 690. Failure of Witness to Attend. 

687. Testimony of Officers of State Hos- 691-2. Commission from other States, 
pital. 693. Persons Aged, Infirm or Sick. 

§ 684. Granting" Commissions to Examine Witnesses on Application of Any 
Party to Suit. — Any Judge or Clerk of the Circuit Court shall have power and 
authority, on the application of any party to a suit pending in the Court of Com- 
mon Pleas for his county, which application may be made to him by the party, 
either in person or by agent or attorney, to grant commissions, under the seal 
of the Court, directed to three or more commissioners, authorizing and empower- 
ing them or any two of them, to take the depositions in writing, of the witness 
or witnesses therein mentioned, resident without the limits of the State or 
county, where the trial is to be had, or that reside at a greater distance than 
one hundred miles from the Court where said action is instituted, or may be 
about to remove without the limits of the State before the sitting of the next 
Court, or before the suit will stand ready for trial, or whose presense cannot 
be procured by reason of indispensable attendance on some public official duty, 
or professional duty as an attorney at such time, or of such sickness or in- 
firmity as incapacitates such witness or witnesses from traveling in order to 
appear and testify, touching such matters as they may have in charge by such 
commission. 

Civ. P. '22, § 709; Civ. '12, § 3972; Civ. '02, § 2868; G. S. 2202; R. S. 2332; 1787, 
V, 45; 1794, V, 249; 1816, VI, 44; 1839, XI, 107. 

§ 685. Service of Notice of Application.— Ten days' notice of such applica- 
tion, with a copy of the interrogatories propounded, shall be served upon the 
opposite party or attorney, who shall have leave to resist such application, on 



187 Code of Civil Procedure § 686 

cause shown : Provided, also, That such application be accompanied by an affi- 
davit of the party applying declaring his or her belief of the materiality of 
any witness proposed to be so examined, together with the fact which may 
entitle the party to such commission. 

Civ. P. '22. § 710 ; Civ. "12, § 3973 ; Civ. '02, § 2869 ; G. S. 2202 ; R. S. 2333. 

§ 686. How Attendance of Witness May Be Compelled. — Either party to 
a cause in which a commission has been issued may, in the discretion of the 
Court, on motion, and upon showing that two days' notice thereof has been given 
to the adverse party or attorney, be entitled to a rule to compel the personal 
attendance of any witness so to be examined, who may reside within the county, 
or not more than thirty miles from the Court House where the trial is to be held. 

Civ. P. '22, § 711 ; Civ. '12„ § 3974 ; Civ. '02, § 2870 ; G. S. 2202 ; R. S. 2334. 

§ 687. Testimony of Officers of State Hospital By Commission in Civil 
Causes. — AVhenever the testimony of any officer at the State Hospital shall be 
required in a court of justice, in a civil cause, the same may be taken by com- 
mission ; nor shall his or her personal appearance be required, unless it shall 
be made to appear to the Court, by affidavit, that justice cannot be done without 
such personal presence in Court. 

Civ. P. '22, § 712; Civ. '12, § 3975; Civ. '02, § 2871; G. S. 2203; R. S. 2335; 1829, 
VI, 382. 

§ 688. Where Commission Issues, Subpoena for Witnesses to Be Issued. — 

Where a Commission shall issue, by consent of parties or otherwise, out of any 
court of judicature in this State, to examine any witness or witnesses residing 
within this State, touching any matter or thing depending in such Court, the 
said Court shall have power, and is hereby required, to issue a subpoena, in 
due and legal form, commanding such witness or witnesses to attend before the 
Commissioners named in the Commission, at a certain time, and at some place 
not more than fifteen miles from the residence of such witness or witnesses, 
respectively, and answer on oath, according to their knowledge, to the inter- 
rogatories and cross-interrogatories annexed to the said commission. 

Civ. P. '22, § 713; Civ. '12, § 3976; Civ. '02, § 2872; G. S. 2204; R. S. 2336; 1794, 
V, 249. 

§ 689. Subpoena Served Two Days Before Attendance of Witnesses — Fees 
of Witness. — Such subpoena shall be served on the witness or witnesses per- 
sonally, at least two days before the time at which attendance is required by it ; 
and such witnesses so attending and giving evidence, shall be entitled to the 
same fees as witnesses in civil cases summoned before a Circuit Court for every 
day of necessary absence from home, and his or her necessary ferriages in going 
to and from attending the said Commissioners, to be paid by the party obtain- 
ing the commission, or his or her agent, before It is delivered out of the hands of 
the Commissioners, who are hereby authorized and required to estimate the num- 
ber of days for which payment is allowed as aforesaid, and to retain the com- 
mission till such payment be made. 

Civ. P. '22, § 714 ; Civ. P. '12, § 3977 ; Civ. P. '02, § 2873 ; G. S. 2205 ; R. S. 2337 ; 1794. 
V, 249; 1870, XIV, 399. 

§ 690. How Witnesses to Be Punished for Contempt in Not Attending Be- 
fore Commissioners. — Nothing contained in this Chapter shall authorize Com- 
missioners to attach or commit persons summoned as witnesses, but any of the 
Circuit Courts of this State, on such subpoena as is herein mentioned being 
produced, and satisfactory information made on oath that it was personally and 
in due time served on any witness therein named, who refused or neglected 



§ 691 Code of Civil Procedure 188 

to attend, according to the command of the said subpoena, or attending, refused 
to answer as aforesaid, shall have power, and is hereby required, to order an at- 
tachment against such witnesss, to appear and answer for such neglect or re- 
fusal, as for a contempt of the Court; which attachment shall be served and 
executed by the Sheriff of that Court where it was awarded, or his deputy, and 
shall run into any part of the State; and such other proceedings shall be had 
thereon, as are usual and allowed in other cases of attachment for contempt. 
Civ. P. '22, § 715; Civ. '12, § 3978; Civ. '02, § 2874; G. S. 2206; R. S. 2338; 1794, V, 249. 

§ 691. Witnesses to Attend and Give Evidence on Commission From Other 
States. — Where a commission shall issue out of any Court of judicature of 
the United States, or of another State, to examine any witness or witnesses re- 
siding in this State, touching any cause, matter, or thing depending in such 
Court, the person having obtained such commission, or his or her agent shall 
produce it to a Judge of the Supreme or Circuit Courts of this State, who, on 
being satisfied of its authenticity and regularity, shall direct a subpoena to 
issue in due form from the Clerk's office of the nearest Circuit Court, in like 
manner as is provided by Section 688 of this Article in cases where commissions 
are issued out of the Courts of this State. 

Civ. P. '22, § 716 ; Civ. '12, § 3979 ; Civ. '02, § 2875 ; G. S. 2207 ; R. S. 2339 ; 1794. V, 249. 

§ 692. Service of Subpoena in Case of Commission from Other States— 
Compensation — Liabilities. — Such subpoena shall be served within the same 
time, and such witness or witnesses, so attending and giving evidence, shall be 
entitled to the same compensation, to be assessed and secured in the same man- 
ner, and in case of neglect or refusal to attend or refusal to give CAddence, shall 
be liable to the same actions, pains and penalties, and to be proceeded against 
in the same manner, as is provided by Sections 690 and 693 of this Article for 
the case of witnesses to be examined in causes pending in this State. 

Civ. P. '22, § 717 ; Civ. '12, § 3980 ; Civ. '02, § 2876 ; G. S. 2208 ; R. S. 2340 ; 1794, V, 249. 

§ 693. Examination of Persons Aged, Infirm, Sick, Etc. — Liabilities. — Noth- 
ing contained in this Chapter shall be held to extend to persons unable to leave 
home by reason of age, infirmity, sickness, or bodily hurt, all of which persons, 
whenever it may be necessary to examine them by commission in causes depend- 
ing either in this State or other States, shall be attended by the Commissioners; 
and in case of their refusal to give evidence, or to answer to the interrogatories 
and cross-interrogatories under any such commission, they shall be liable to the 
action of the party who may be injured by the want of their testimony, and shall 
make reparation in damages for such injury. 

Civ. P. '22, § 718 ; Civ. '12, § 3981 ; Civ. '02, § 2877 ; G. S. 2209 ; R. S. 2341 ; 1794, V, 249. 



ARTICLE 3 

Examination of Witnesses Before Clerk and Depositions De Bene Esse. 

694. Depcsitions taken by Clerks of Court. 697. Deposition De Bene Esse. 

695. Compelling Attendance of Witnesses. 698. Testimony Reduced to Writing. 

696. Fees of Clerk. 699. Custody of Deposition. 

§ 694. Depositions Taken By Clerks of Court — Right of Examination — Dep- 
osition to be Certified. — The Clerks of the Courts of Common Pleas in this 
State, in all civil causes or proceedings at issue in the Courts of Common Pleas 
for their respective counties, shall, upon the application of either party to such 
cause or proceeding, after ten days ' notice to the adverse party, take, in writing. 



189 Code of Civil Procedure § 695 

the depositions of said party, or of any witness or witnesses in said cause or 
proceeding, whose examination shall be required by the party making such 
application ; upon taking which depositions, the several parties shall be entitled 
to the same rights of examination, cross-examination, and examination in reply, 
and the same exceptions to the admissibility of evidence, as are allowed by law 
upon examination before the Court. And the depositions so taken shall be certi- 
fied by the Clerk before whom such examination was had, and may be read in 
evidence at the trial of the said cause or proceeding; subject, nevertheless, to 
the right of either party to require the personal attendance and viva voce ex- 
amination of the witness or witnesses at the trial of said cause, or proceeding; 
the exercise of which right, however, not to cause a continuance or delay in the 
trial of the said cause or proceeding. 

Civ. P. '22, § 719 ; Civ. '12, § 3982 ; Civ. '02, § 2878 ; G. S. 2210 ; R. S. 2342 ; 1872, XV, 41. 

§ 695. Power to Compel Attendance of Witnesses — Failure to Attend — 

Penalty.— Every Clerk of the Court of Common Pleas shall have power to 
compel the attendance before him of the witness or witnesses to be examined, 
as aforesaid, upon the application of a party to any civil cause or proceeding 
at issue in the said Court; for which purpose he may issue a subpoena to any 
such witness, which shall be served personallj^; and if any witness, upon whom 
such subpoena has been duly served, shall fail to attend conformably thereto, 
the Clerk by whom the same was issued shall have power to issue a rule, requir- 
ing such witness to show cause why he should not be attached for contempt ; 
and, upon the failure or neglect of such witness to show cause, the said Clerk 
shall have power to issue an attachment against such witness for contempt, which 
attachment shall not be dissolved, except by the order of a Judge, or of the said 
Clerk. 

Civ. P. '22, § 720 ; Civ. '12, § 3983 ; Civ. '02, § 2879 ; G. S. 2211 ; R. S. 2343 ; 1872, XV, 41. 

§ 696. Fees of Clerk for Examination of Witnesses. — Every Clerk of the 
Court of Common Pleas, for taking the depositions hereinabove mentioned, shall 
be entitled to demand and receive the sum of one dollar for each witness ex- 
amined, to be paid by the party against whom judgment shall be rendered in 
said cause or proceeding. 

Civ. P.' 22, § 721 ; Civ. '12, § 3984 ; Civ. '02, § 2880 ; G. S. 2212 ; R. S. 2344 ; 1872, XV, 41. 

§ 697. When Testimony May Be Taken by Deposition De Bene Esse and by 
Whom — Proceedings. — In addition to the methods for taking testimony now 
provided by law the testimony of any witness may be taken in any civil action 
depending in the Court of Common Pleas for any county within this State by 
deposition de l)ene esse, where the witness lives without the county in which 
such cause is to be tried, or at a greater distance from the place of trial than 
one hundred miles, or is bound on a voyage to sea, or is about to go out of this 
State or out of the county in which the cause is to be tried, or to a greater dis- 
tance than one hundred miles from the place of trial before the time of trial, or 
when he is aged or infirm. The deposition may be taken before any Circuit 
Judge of this State, or the Clerk of any of the Circuit Courts of this State, 
or any Magistrate or Notary Public of this State, or any Chancellor, Justice 
or Judge of a Supreme or Superior Court, Mayor or Chief Magistrate of a city, 
Magistrate, Judge of a County Court or Court of Common Pleas, of any of the 
United States or the Dominion of Canada or Kingdom of Great Britain, or 
any Notary Public not being of counsel or attorney to either of the parties in- 
terested in the event of the cause. Reasonable notice, not less than ten days, 
must first be given in writing by the party or his attorney proposing to take 



§ 698 Code of Civil Procedure 190 

such deposition, to the opposite party or his attorney of record, as either may 
be nearest, which notice shall state the name of the witness and the time and 
place of the taking of his deposition ; and whenever, by reason of absence from 
the State and want of an attorney of record or other reason, the giving of the 
notice herein required shall be impracticable, it shall be lawful to take such 
depositions as there shall be urgent necessity for taking, upon such notice as 
any of the Circuit Judges of this State shall think reasonable and direct. Any 
person may be compelled to appear and depose as provided by this Section 
in the same manner as witnesses may be compelled to appear and testify in 

Court. 

Civ. P. '22, § 722 ; Civ. '12, § 3985 ; Civ. '02, § 2881 ; R. S. 2345 ; 1883, XVIII, 373. 

§ 698. Testimony to Be Reduced to Writing. — Every person deposing as 
provided in the preceding Sections shall be cautioned and sworn to testify the 
whole truth and carefully examined. His testimony shall be reduced to writing 
by the officer taking the deposition, or by himself in the officer's presence, and 
by no other person, and shall, after it has been reduced to writing, be subscribed 
by the deponent : Provided, That this shall not be construed to prevent the use 
of stenographers for the purpose of taking such testimony, but the testimony 
so taken by such stenographers shall be reduced to writing or typewritten and 
read over to such witnesses. 

Civ. P. '22, § 723 ; Civ. '12, § 3986 ; Civ. '02, § 2882 ; R. S. 2346 ; 1883, XVIII, 373 ; 1902, 
XXIII, 1072. 

§ 699. Deposition Retained by the Officer Taking" It Until Delivered to 

Court — When Not Used. — Every deposition taken under the provisions of the 

two preceding Sections shall be retained by the officer taking it until he delivers 

it with his own hand into the Court for which it is taken, or shall, together with 

a certificate of the reasons as aforesaid of taking it and of the notice, if any, 

given to the adverse party, be by such officer sealed up and directed to such 

Court, and forwarded to such Court either by mail or express, and remain under 

his seal until opened in Court. But unless it appears to the satisfaction of the 

Court that the witness is then dead or gone out of the county or State, or to 

a greater distance than one hundred miles from the place where the Court is 

sitting, or that, by reason of age, sickness, bodily infirmity or imprisonment, he is 

unable to travel and appear at Court, such deposition shall not be used in the 

cause. 

Civ. P. '22, § 724 ; Civ. '12, § 3987 ; Civ. '02, § 2883 ; R. S. 2347 ; 1883, XVIII, 373. 



CHAPTER 8 

Provisions Respecting Methods of Proof 

700. Proof of iSignatures to Note or Bond. 713. Copies of Recorded Deeds. 

701. Signature in Action Against Executors 714. Production of Original wliere Instru- 
or Administrators. ment Recorded. 

702. Protest of Notary. 715. Proof of Recorded Instruments when 

703. Testimony of Survivors to Fraudulent Fraud Alleged. 
Transaction. 716-7. Foreign Instruments. 

704. Attested Copies of Acts, Records, Etc. 718. Farmers' and Planters' Books. 

705. Municipal Records. 719. Medical or Scientific Books. 

706. Proof of Ordinances. 720. Substitution of New Record wliere 

707. Statutes of other States. Original lost. 

708. Transcripts from Minute Books of 721-3. Proceedings to Perpetuate Testi- 
Former Court. mony. 

709. Copies of Public Documents. 724. Proof of Lost Papers. 

710. Copies by Superintendent of Education. 725. Cost for Preservation of Testimony. 

711. Copies of Entries on Sheriff's Books. 726. Mortuary Table. 

712. Copies of Grants and Plats by North 727. Papers Issued by Common Carriers, 
and South Carolina. 



191 Code of Civil Procedure § 700 

§ 700. Proof of Signatures in Absence of Witnesses — Postponement.— The 
absence of a witness to any bond or note shall not be deemed a good cause, by 
any court of justice, for postponing a trial respecting the same ; but the signa- 
ture to such bond or note may be proved by other testimony ; unless the defendant 
in his answer, shall swear, or affirm, according to the form of his religious pro- 
fession, that the signature to the bond or note in suit is not his or hers. 

Civ. P. '22, § 725 ; Civ. '12, § 39SS ; Civ. '02, § 2884 ; G. S. 2213 ; R. S. 2348 ; 1802, V, 485. 

§ 701. Postponement Where Witnesses to Signature Are Absent in Action 
Against Executors Etc. — In case the defendant or defendants should be ex- 
ecutors or administrators, the cause shall not be postponed for want of the sub- 
scribing witness to the bond or note in suit, but the signature may be proven 
by other testimony.; unless one of the executors or administrators, w^ho are de- 
fendants, shall swear, or atfirm, as aforesaid, in his answer, that they have cause 
to believe the signature to such bond or note is not the testator's or intestate's, 
as the case may be. 

Civ. P. '22, § 726 ; Civ. '12, § 3989 ; Civ. '02, § 2885 ; G. S. 2214 ; R. S. 2349 ; 1802, V, 485. 

§ 702. Notary's Protest Sufficient Evidence if Notary Be Dead, or Lives 
in Another County. — Whenever a Notary Public, who may. have made pro- 
test for non-payment of any inland bill or promissory note, shall be dead, or 
shall reside out of the county in which said bill or note is sued, his protest of 
said bill or note shall be received as sutScient evidence of notice in any action 
by any person whatsoever, against any of the parties to such bill or note. 

Civ. P. '22, § 727 ; Civ. '12, § 3990 ; Civ. '02, § 2886 ; G. S. 2215 ; R. S. 2350 ; 1802, V, 48o, 

§ 703. Survivors to Transaction Impeached for Fraud, Competent and Com- 
pellable to Testify. — In any proceeding in any of the Courts of this State in 
which any transaction shall be impeached for fraud by a creditor, or creditors, 
of either party to such transaction, or hy any other person interested in estab- 
lishing such fraud, the survivor, or survivors, of the parties to such alleged 
fraud, when one or more of the said parties shall be dead, shall be competent 
and compellable to testify in behalf of such creditor or creditors, or other per- 
son interested in establishing such fraud, any law, rule, or usage to the con- 
trary notwithstanding : Provided, That nothing herein shall render such sur- 
vivor, or survivors, competent to testify in relation to such transaction in their 
own behalf in any proceeding instituted by him or them: Provided, further, 
That nothing herein shall render any person incompetent as a witness who is now 
competent under the laws and usage of this State. 

Civ. P. '22, § 728 ; Civ. '12, § 3991 ; Civ. '02, § 2887 ; G. S. 2216 ; R. S. 2351 ; 1876, XVI, 38. 

§ 704. Attested Copies of Acts, Records, Etc., Good Evidence. — An attested 
copy of any Act or ordinance of the General Assembly of this State, signed by the 
Secretary of State, and also attested copies of all records, signed by the keeper 
of such records, respectively, shall be deemed and allowed as good evidence in 
any of the Courts of this State as the original could or might have been if pro- 
duced to the said Courts. 

Civ. P. '22, § 729 ; Civ. '12, § 3992 ; Civ. '02, § 2888 ; G. S. 2217 ; R. S. 2352 ; 1721, VII, 176 ; 
1801, V, 411 ; 1856, XII, 520 ; 1868, XIV, 76 ; 1868, XIV, 132. 

§ 705. Copy Municipal Records. — A copy of any ordinances, or resolution 
or of the minutes or records of any town or city of this State when certified 
under the hand of the officer having custody of the records of such town or 
city and under the corporate seal thereof, shall be admitted in evidence in any 



§ 706 Code of Civil Procedure 192 

of the Courts of this State on ten days' notice of intention to offer such copy 
being given to the opposite party or his attorney. 

Civ. P. '22, § 730 ; Civ. '12, § 3993 ; Civ. 02, § 2889 ; 1891, XXIII, 631. 

§ 706. Proof of Ordinances of Municipalities. — In all the Courts held in 
this State the printed ordinances of the municipalities in said State, whether 
they be in pamphlet or book form, shall be admitted into evidence in said Courts 
and shall constitute prima facie evidence of the genuineness Of the same: Pro- 
vided, The Clerk of such municipality certify to the correctness of same. 

1930, XXXVI, 1107. 

§ 707. Laws of Other States — How Approved. — Printed copies, in volumes, 
of Statutes, Codes, decided cases or other written law enacted by any other 
sovereignty. State, Territority, or foreign government, purporting or proved to 
have been published by the authority thereof, or proved to be commonly ad- 
mitted as evidence of the existing law in the Courts and judicial tribunals 
of such sovereignty. State, Territority, or government, or purporting to be an 
authentic publication by a reputable publisher, shall be admitted by the Courts 
and officers of this State, on all occasions, as presumptive evidence of such laws 
without further proof. The unwritten or common law of any other sovereignty, 
State, Territory, or foreign government, may be proved as facts by parol evi- 
dence ; and the books of reports of cases adjudged in their Courts may also be 
admitted as presumptive evidence of such law. 

Civ. P. '22, § 731 ; Civ. P. '12, § 460 ; Civ. P. '02, § 422 ; 1870, XIV, § 441 ; Civ. '12, § 3994 ; 
Civ. '02, § 2890 ; G. S. 2218 ; R. S. 2353 ; 1911, XXVII, 146. 

§ 708, Transcripts From Minute Books of Former Courts. — A transcript 
from the minute books of any Court of record now or heretofore existing in 
this State, shall be good and legal evidence in any trials in any of the Courts 
in this State, when it may be necessary to give such proceedings in evidence: 
Provided, That such transcript be regularly and duly certified under the hand 
of, and sworn to by, the Clerk or keeper of the said proceedings and records of 
the said Courts, who has, by law, the custody thereof ; any law, usage, or custom 
to the contrary notwithstanding. 

Civ. P. '22, § 732 ; Civ. '12, § 3995 ; Civ. '02, § 2891 ; G. S. 2219 ; R. S. 2354 ; 1800, V, 381. 

§ 709. Copies of Certain Instruments Kept in Public Office — Thirty Days' 

Notice Required, Etc. — A copy of any administration bond, guardianship bond. 

Constable's bond, bond of a trustee, or a bond of the committee of a lunatic, 

and all other instruments in writing, which, by law, are required or permitted 

to be in writing, and kept in a public office, certified by the officer having the 

custody of the same, shall be admitted in evidence in any of the Courts of this 

State, on thirty days' previous notice of the intention to offer such copy being 

given to the party against whom it is to be offered, or his or her attorney. 

Civ. P. '22, § 733 ; Civ. '12, § 3996 ; Civ. '02, § 2892 ; G. S. 2220 ; R. S. 2355 ; 1823, VI, 209 ; 
1829 ; VI, 384 ; 1842, XI, 223 ; 1866 ; XIII, 429. 

§ 710. Certified Copies By State Superintendent of Education. — Copies of 

all papers filed in the office of the State Superintendent of Education, and his 

official acts, may be certified by him, and when so certified shall be evidence 

equally and in like manner as the original papers. 

Civ. P. '22, § 734 ; Civ. '12, § 3997 ; Civ. '02, § 2893 ; G. S. 2221 ; R. S. 2356 ; 1871, XIV, 
576. 

§ 711. Certified Copies of Entries in Sheriff's Books — Ten Days' Notice 
Required, Etc. — A copy of any entry in the official books of any Sheriff certi- 
fied to by the oath of such Sheriff, before the Clerk of the Court of Common 



193 Code of Civil Procedure § 712 

Pleas and General Sessions, under the seal of said Court, shall be received 
as competent evidence by any of the Courts of this State, except in causes tried 
in the county where the said books are kept: Provided, That ten days' notice 
in writing of intention to offer such copy be first given to the opposite party, 
his attorney or solicitor. 

Civ. P. '22, § 735 ; Civ. '12, § 3998 ; Civ. '02, § 2894 ; G. S. 2222 ; R. S. 2357 ; 1856, XII, 550. 

§ 712. Copies of Grants and Plats Issued by This State and North Carolina. 

— It shall be lawful, in every Court of this State, for any party, plaintiff or 
defendant, to produce in evidence a copy, certified by the Secretary of State, 
of any grant and plat of land issued under the authority of this State, or 
certified copies of grants under the authority of the State of North Carolina : 
Provided, That the person or persons so applying to produce an office copy of a 
grant in evidence swear that the original grant is lost, destroyed, or out of his, 
her, or their power to produce, and that he, she, or they have not destroyed, 
mislaid, or in any way willingly, previous to that time, put it out of his, her, 
or their power to produce the same, with an intention to produce an office copy 
of the same in evidence : Aiid Provided, also, That nothing herein contained shall 
be construed to deprive any party in possession of the original grant of any ad- 
vantage he would have had or derived from possessing the same, in case this 
Section had never been passed. 

Civ. P. '22, § 736 ; Civ. '12, § 3999 ; Civ. '02, § 2895 ; G. S. 2224 ; R. S. 2360 ; 1731. Ill, 303 ; 
1906. V, 459. 

§ 713. Copies of Deeds Where Originals Are Lost. — A copy of any deed 
of conveyance of real estate certified by the Register of Mesne Conveyances or 
Clerk of Court of the county where the same may be recorded, may be produced 
in e^ddence in every Court of this State for any party, plaintiff or defendant, 
in like manner and subject to the same rules as are provided by the foregoing 
Section in relation to grants and plats : Provided, That the party intending to 
offer in evidence such office copy shall give at least ten days' notice thereof to 
the opposite party or his attorney. 

Civ. P. '22, § 737 ; Civ. '12, § 4000 ; Civ. '02, § 2896 ; G. S. 2225 ; R. S. 2361 ; 1843, XI, 255. 

§ 714. Proof of Recorded Instruments, Other Than Wills, by Production 
of Original. — The production (without further or other proof) of the original 
of any and every instrument in writing (other than wills) required by law to 
be recorded shall always and everywhere be prima facie evidence of the execu- 
tion and recording of such instrument: Provided, That such instrument shall 
have been recorded in the manner and place and within the time prescribed by 
law for recording the same, and the recording thereof shall have been certified 
by the Clerk of Court or Register of Mesne Conveyance : And Provided, further. 
That any party or his attorney so producing any such recorded instrument shall 
have given at least ten (10) days' previous notice in writing to the opposite 
party or his attorney of the intention so to produce any such recorded instru- 
ment with a description of the same. 

Civ. P. '22, § 738 ; Civ. '12, § 4001 ; Civ. '02, § 2897 ; 1898, XXII, 745 ; 1900, XXIII, 347. 

§ 715. Provision as to Proof of Recorded Instruments Not Applicable When 
Fraud Is Alleged. — The provisions of the preceding Section shall not apply 
when any such recorded instrument is assailed or attacked on the ground of 
fraud in its execution: Provided, That at least (10) days' previous notice in 
writing of such ground by a pleading or otherwise and duly sworn to shall have 
been given by the party or his attorney so assailing or attacking such instru- 
ment to the opposite party or his attorneys. 

Civ. P. '22, § 739 ; Civ. '12, § 4002 ; Civ. '02, § 2898 ; 1898, XXII, 745. 



§ 716 Code of Civil Procedure 194 

§ 716. Foreign Instrument. — All exemplifications of records, and all deeds 
and bonds, or other specialties, all letters of attorney, procuration, or other 
power in writing, and all testimonials, which shall at any time be produced in 
any of the Courts of this State, and shall be attested to have been proved, upon 
oath, under the corporation seal of any mayor or chief officer of any city, 
borough, or town corporate in any foreign State, or under the hand of the 
Governor and public seal of any State in America, or under the notarial seal 
of any Notary Public, shall be deemed and adjudged good and sufficient in 
law, in any of the courts of judicature in this State, as if the witnesses to such 
deeds were produced and proved the same viva voce, except as hereinafter 
provided. 

Civ. P. '22, § 740 ; Civ. '12, § 4003 ; Civ. '02, § 2899 ; G. S. 2226 ; R. S. 2362 ; 1721, VII, 176 ; 
1731, VIII, 285. 

§ 717. Restriction Upon Use of Copies of Foreign Instruments. — No testi- 
monial, probate, certificate, or other instrument under the seal of any foreign 
court of law, Notary Public, or other Magistrate or person qualified and em- 
powered to give the same, shall be received in the Courts of the State as evi- 
dence of any debt or demand owing by any person or persons resident within 
the limits of this State : Provided, nevertheless, That if it shall appear to the 
Court that the testimonials, probate, certificates, or other instruments of writ- 
ing for the purposes aforesaid, which have been, or shall be hereafter, issued 
from any of the Courts of this State, or by any of the officers thereof au- 
thorized and empowered to give the same, are received and allowed as evi- 
dence in the Courts of such foreign country, then such instruments of writing 
shall be received in evidence in the Courts of this State. 

Civ. P. '22, § 741 ; Civ. '12, § 4004 ; Civ. '02 ; § 2899 ; G. S. 2227 ; R. S. 2363 ; 1787, V, 45. 

§ 718. Farmers' and Planters' Books Receivable in Evidence. — Books of 
original entry kept by farmers and planters relating to the transactions of their 
farms or plantations shall be receivable in evidence in all trials in which the 
business or transactions of their farms or plantations shall be called in ques- 
tion, as between the farmer or planter and his employees, in the same manner 
as books of merchants and shopkeepers are. 

Civ. P. '22, § 742 ; Civ. '12, § 4005 ; Civ. '02, § 2900 ; G. S. 2228 ; R. S. 2364 ; 1865, XIII, 
807 ; 1721, VII, 168. 

§ 719. Medical or Scientific Books— In What Cases May Be Read.— In all 

actions or proceedings, civil or criminal, in which the question of sanity or in- 
sanity, or the administration of poison or other article destructive to life, is 
involved, and in which expert testimony may now be introduced, the medical or 
scientific works, or such parts thereof as may be relevant to the issues involved, 
shall be competent and admissible to be read before the Court, or jury, in ad- 
dition to such expert testimony. 

Civ. P. '22, § 744 ; Civ. '12, § 4007 ; Civ. '02, § 2902 ; R. S. 2366 ; 1891, XX, 1042. 

§ 720. Applications for Leave to Substitute New Record in Place of Lost 

or Destroyed.— The plaintiff or plaintiffs or any of them, in any judgment 
or decree, the record whereof has been destroyed or abstracted or lost, or his 
or their personal representatives, or other person or persons claiming under or 
through them, or any or either of them, or any person whatever, having an in- 
terest in the preservation of the evidence of such judgment or decree, may upon 
notice of not less than twenty-one days, served as a summons in actions is now 
served pursuant to law, upon the defendant or defendants therein, or upon 
those upon whom his, her or their liability has devolved, or others interested to 
oppose the application, apply to the Court in which such judgment or decree was 



195 Code of Civil Procedure § 721 

rendered for leave to substitute a new record; and if, upon hearing the evi- 
dence on each side the Court is satisfied of the existence and loss of such record, 
an order for leave to substitute shall be made, conforming as nearly as possible 
in all respects to the lost, abstracted or destroyed record; and if it be for the 
payment of money, the balance due thereon and date of lien, if any, shall be 
made to appear thereon, and such substituted record shall be good and valid in 
law to all intents and purposes. 

Civ. P. '22, § 745 ; Civ. '12, § 4008 ; Civ. '02, § 2903 ; G. S. 2230 ; R. S. 2367 ; 1882, XVII. 
1081. 

§ 721. Lost Deeds, Etc., Proceedings to Perpetuate Testimony — Any per- 
son interested in the preservation of the contents of any deed, release, private 
writing usually put on record, or document, alleged to have been lost or de- 
stroyed or defective in the record thereof, and desiring to preserve the evi- 
dence thereof for any purpose, may, by summons and complaint as now pro- 
vided by the Code of Procedure, institute an action in the Court of Common 
Pleas to perpetuate testimony as to the existence and true contents of the same, in 
w^hich complaint the defects, if any, complained of in the records shall be substan- 
tially^ set forth, and to said action all persons interested, or known or supposed to 
claim an interest in the property to which such testimony may relate, shall be 
made parties defendants, and served with summons as now provided by law in 
civil actions. 

Civ. P. '22, § 746 ; Civ. '12, § 4009 ; Civ. '02, § 2904 ; G. S. 2230, 2232 ; R. S. 2368 ; 1882. 
XVII, 1081. 

§ 722. Judge At Chambers May Hear and Grant Necessary Orders to Pre- 
serve Testimony. — The Court, or Judge at chambers, having jurisdiction of 
the subject matter may hear, determine and grant all orders, as will best sub- 
serve the purposes of the complaint, and the preservation of the testimony 
sought, without delay. 

Civ. P. '22, § 747 ; Civ. '12, § 4010 ; Civ. '02, § 2905 ; G. S. 2230, 2233 ; R. S. 2369 ; 1882, 
XVII, 1082. 

§ 723. Evidence to Preserve Testimony May Be Eecorded — Its Force and 
Effect. — The evidence so taken shall be preserved, and the parties may have 
the same recorded in the office to which the same may relate ; and such evi- 
dence so taken, preserved and recorded, shall be received in all Courts, subject 
to the same rules as to competency and credibility as any other evidence. 

Civ. P. '22, § 748 ; Civ. '12, § 4011 ; Civ. '02, § 2906 ; G. S. 22.30, 2234, 2235 ; R. S. 2370 ; 
1882, XVII, 1082. 

§ 724. Other Proof of Lost Papers Hot Excluded. — Nothing herein con- 
tained shall prevent any one from establishing, on the trial of any cause, any 
lost papers, according to the rules of evidence existing at common law. 

Civ. P. '22, § 749 ; Civ. '12, § 4012 ; Civ. '02, § 2907 ; G. S. 2230, 2235 ; R. S. 2371 ; 1882, 
XVII, 1082. 

§ 725. Cost For Preservation of Testimony Discretionary With Judge. — 

The costs of such proceedings as shall be had under the provisions of the six 

last preceding Sections shall be in the discretion of the presiding Judge. 

Civ. P. '22, § 750 ; Civ. '12, § 4013 ; Civ. '02, § 2908 ; G. S. 2230 ; R. S. 2236 ; 1882, XVII, 
1082. 

§ 726. Mortuary Table Established. — In all civil actions or other modes 
of litigation, whenever it shall be necessary to establish the expectancy of con- 
tinued life of any person from any period of such person's life, whether he be 
living at the time or not, the table hereto appended shall be received in all 
Courts, and by all persons having power to determine litigation, as evidence, 



§ 727 



Code of Civil Procedure 



196 



with other evidence as to the health, constitution and habits of such person, of 
such expectancy represented by the figures in the columns headed by the words 
"completed age" and "expectation," respectively: 
Civ. P. '22, § 751 ; Civ. '12, § 4014 ; 1903, XXIV, 92. 



Completed Age 


Expectation 


Completed Age 


Expectation 


10 


48.7 


53 


18.79 


11 


48.1 


54 


18.09 


12 


47.4 


55 


17.40 


13 


46.8 


56 


16.72 


14 


46.2 


57 


16.05 


15 


45.5 


58 


15.39 


16 


44.9 


59 


14.74 


17 


44.2 


60 


14.09 


18 


43.5 


61 


13.47 


19 


42.9 


62 


12.86 


20 


42.2 


63 


12.26 


21 


42.53 


64 


11.67 


22 


40.85 


65 


11.10 


23 


40.17 


66 


10.54 


24 


39.49 


67 


10.00 


25 


38.81 


68 


9.47 


26 


38.11 


69 


8.97 


27 


37.43 


70 


8.48 


28 


36.73 


71 


8.00 


29 


36.03 


72 


7.55 


30 


35.33 


73 


7.11 


31 


34.62 


74 


6.68 


32 


33.92 


75 


6.27 


33 


33.21 


76 


5.88 


34 


32.50 


77 


5.49 


35 


31.78 


78 


5.11 


36 


31.07 


79 


4:74 


37 


30.35 


80 


4.39 


38 


29.62 


81 


4.05 


39 


28.90 


82 


3.71 


40 


28.18 


83 


3.39 


41 


27.45 


84 


3.08 


42 


26.72 


85 


2.77 


43 


25.99 


86 


2.47 


44 


. 25.27 


87 


2.18 


45 


24.54 


88 


1.91 


46 


23.80 


89 


1.66 


47 


23.08 


90 


1.42 


48 


22.36 


91 


1.19 


49 


21.63 


92 


.98 


50 


20.91 


93 


.80 


51 


20.20 


94 


.64 


52 


19.49 


95 


.50 



§ 727. Copies of Certain Papers 
Evidence. — It shall be competent to 
porting to be the original or copy 



Issued By Common Carriers Prima Facie 

introduce in evidence any instrument pur- 
of any waybill, receipt, bill of lading, or 



197 Code of Civil Procedure § 728 

similar instrument issued by any common carrier, as prima facie evidence that 
the same is genuine or is a true and correct copy : Provided, The adverse party 
shall fail, upon due notice given to produce the original instrument. 
Civ. P. '22, § 752 ; Civ. '12, § 4015 ; 1910, XXVI, 695. 



TITLE 10 

Executions and Proceedings Supplementary to Executions 

Chapter 1. Executions, § 728. 

Chapter 2. Proceedings Supplementary to Executions, § 738. 



CHAPTER 1 

Executions 

728. Execution witliin Ten Years. 734. Forms of Execution. 

729. Enforcement of Judgments. 735. Effect of Final Judgment. 

730. Kinds of Executions. 736. Wlien Executions May Issue — Magis- 

731. Execution Against Married Women. trate's Judgment. 

732. Innocent Purcliasers at Judicial Sales. 737. Actions on Judgments after Twenty 

733. Execution Against the Person. Years. 

§ 728. Execution Within Ten Years of Course. — Writs of execution for 

the enforcement of judgments shall conform to this Title; and the party in 

whose favor judgment has been heretofore or shall hereafter be given, and, in 

case of his death, his personal representatives duly appointed, may, at any time 

within ten years after the entry of judgment, proceed to enforce the same, as 

prescribed by this Title. 

Civ. P. '22, § 604 ; Civ. P. '12, § 342 ; Civ. P. '02, § 303 ; 1870, XIV, § 306 ; 1873, XV, 498, 
§ 15 ; 1885,XIX, 229. 

§ 729. Judgments — How Enforced. — Where a judgment requires the pay- 
ment of money, or the delivery of real or personal property, the same may be 
enforced, in those respects, by execution, as provided in this Title. Where it 
requires the performance of any other act, a certified copy of the judgment may 
be served upon the party against whom it is given, or the person or officer who 
is required thereby or by law to obey the same, and his obedience thereto en- 
forced. If he refuse, he may be punished by the Court as for contempt. 

Civ. P. '22, § 605 ; Civ. P. '12, § 343 ; Civ. P. '02, § 304 ; 1870, XIV, § 308. 

§ 730. The Different Kinds of Execution. — There shall be three kinds of 
executions : One against the property of the judgment debtor ; another against 
his person; and the third for the delivery of the possession of real or personal 
property, or such delivery with damages for withholding the same. They shall 
be deemed the process of the Court. 

Civ. P. '22, § 606 ; Civ. P. '12, § 344 ; Civ. P. '02, § 305 ; 1870, XIV, § 309. 

§ 731. To What Counties Execution Issued — Sales — By Whom Made — Ex- 
ecution Against Married Women. — When the execution is against the property 
of the judgment debtor, it may be issued to the Sheriff of any county where 
judgment is docketed by the Clerk of Court in which the judgment was original- 
ly entered up or by the Clerk of Court of any County where the judgment is 
docketed or transcribed. When it requires the delivery of real or personal prop- 
erty it must be issued to the Sheriif of the County where the property, or some 
part thereof is situated. Executions may be issued at the same time to different 
counties. Property adjudged to be sold must be sold in the county where it lies 



§ 732 Code of Civil Procedure 198 

except as hereinafter otherwise provided, and in the following manner. All 
sales of real estate under the orders of the Probate Court shall be made by the 
Judge of Probate ; all sales under the order of the Court where the title is to 
be made by the Clerk of the Circuit Court shall be made by the Clerk. In those 
counties where the office of Master exists, the Master shall make all sales or- 
dered by the Court in granting equitable relief, conformable to the practice of 
the Circuit Court, or to the practice of the Courts of Equity of this State be- 
fore said Courts were abolished. And whenever real estate is adjudged to be 
sold by a Master, such sale may take place by consent of the parties to the 
cause, or their attorneys, or, when infants are parties, by consent of their 
guardians ad litem, or their attorneys, in any county which the Court may 
direct. Whenever the Court of Common Pleas in any county shall have ac- 
quired jurisdiction over real estate lying in another county, it shall be lawful 
for the Master for the County in which the action is brought to sell such real 
estate in the county in which the land is situated : Provided, however. That 
where such land is contained in one tract or adjoining tracts lying in more than 
one County, the land may be sold in whatever County the Court may fix, and 
the advertisement shall appear in the County or Counties in which the land is 
situate and in which the land is to be sold. All other judicial sales shall be made 
by the Sheriffs, as now provided by law. Upon such sale being made, and the 
terms complied with, the officer making the same must execute a conveyance to 
the purchaser, which conveyance shall be effectual to pass the rights and in- 
terests of the parties adjudged to be sold. An execution may issue against a 
married woman, and it shall direct the levy and collection of the amount of 
the judgment against her from her separate property, and not otherwise. 

Civ. P. '22, § 607 ; Civ. P. '12, § 345 ; Civ. P. '02, § 306 ; 1870, XIV, § 310 : 1872, XV, 194 ; 
1878, XVI, 336, 558 ; 1884, XVIII, 708 ; 1885, XIX, 7 ; 1927, XXXV, 289 ; 1929, XXXVI, 1052. 

§ 732. Judicial Sales Res Adjudicata As To Innocent Purchasers, Without 
Confirmation. — Upon the execution and delivery by the proper officer of the 
Court of a deed for any property sold at a judicial sale under a decree of a 
Court of competent jurisdiction, the proceedings under which such sale is 
made shall be deemed res adjudicata as to any and all iona fide purchasers for 
value without notice, notwithstanding such sale may not subsequently be con- 
firmed by the Court. This Section shall apply to any and all judicial sales here- 
tofore made as well as those hereafter to be made, 

1923, XXXIII, 126. 

§ 733. Execution Against the Person — In What Cases. — If the action be 
one in which the defendant might have been arrested, as provided in Section 
491 and Section 493, an execution against the person of the judgment debtor 
may be issued to any county within the jurisdiction of the Court, after the re- 
turn of an execution against his property unsatisfied in whole or in part. But 
no execution shall issue against the person of a judgment debtor, unless an or- 
der of arrest has been served, as in this Code of Procedure provided, or unless 
the complaint contains a statement of facts showing one or more of the causes 
of arrest required by Section 491. 

Civ. P. '22, § 608 ; Civ. P. '12, § 346 ; Civ. P. '02, § 307 ; 1870, XIV, § 311. 

§ 734. Forms of Execution. — The execution must be directed to the Sheriff, 
or Coroner when the Sheriff is a party or interested, attested by the Clerk, sub- 
scribed by the party issuing it, or his attorney, and must intelligibly refer to 
the judgment, stating the Court, the county where the judgment roll or 
transcript is filed, the names of the parties, the amount of the judgment if it 



199 • Code of Civil Procedure § 735 

be for money, the amount actually due thereon, and the time of docketing in 
the county to which the execution is issued, and shall require the officer, sub- 
stantially, as follows : 

(1) If it be against the property of the judgment debtor, it shall require the 
officer to satisfy the judgment out of the personal property of such debtor ; and 
if sufficient personal property cannot be found, out of the real property be- 
longing to him. 

(2) If it be against real or personal property in the hands of personal repre- 
sentatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall 
require the officer to satisfy the judgment out of such property. 

(3) If it be against the person of the judgment debtor, it shall require the 
officer to arrest such debtor and commit him to the jail of the county until he 
shall pay the judgment or be discharged according to law. 

(4) If it be for the delivery of the possession of real or personal property, it 
shall require the officer to deliver the possession of the same, particularly de- 
scribing it, to the party entitled thereto, and may, at the same time, require the 
officer to satisfy any costs, damages, or rents or profits recovered by the same 
judgment, out of the personal property of the party against whom it was ren- 
dered, and the value of the property for which the judgment was recovered, to 
be specified therein; if a delivery thereof cannot be had, and if sufficient per- 
sonal property cannot be found, then out of the real property belonging to him, 
and shall, in that respect, be deemed an execution against property. 

Civ. P. '22, § 609 ; Civ. P. '12, § 347 ; Civ. P. '02, § 308 ; 1870, XIV, § 312. 

§ 735. Final Judgments — Lien on Real Estate For Ten Years — Transcripts 
— Where Lien Filed. — (1) Final judgments and decrees entered in any Court 
of record in this State, subsequent to the twenty-fifth day of November, A. D., 
1873, or of any Circuit or District Court of the United States within this State, 
or of any other Federal Court which, by act of Congress, shall be declared to 
create a lien, shall constitute a lien upon the real estate of the judgment debtor 
situate in any county in this State, where the said judgment or transcript 
thereof is entered upon the Book of Abstracts of Judgments and duly in- 
dexed, the lien to begin from the time of such entry on the Book of Abstracts 
and Indices, and to continue for a period of ten years from the date of such 
final judgment or decree : Provided, That a transcript of any judgment ren- 
dered by any Court of this State may be filed in the office of the Clerk of Court 
of Common Pleas of any county, and when so filed, shall be entered upon the 
Book of Abstracts and duly indexed, and shall thereupon constitute a lien 
upon the real estate of the judgment debtor in that county from the date of its 
entry upon the books of Abstracts and Indices, for a period of ten years from 
the date of the original judgment. 

1928, XXXV, 1223. 

(2) Revival of Judgment — Limitations — Manner — Transcripts. — A final 
judgment may be revived at any time within the period of ten years from the 
date of the original entry thereof by the service of a summons upon the judg- 
ment debtor, as provided by law, or, if the judgment debtor be dead, upon his 
heirs, executors or administrators, or, if he be removed out of the State, by 
publication of such summons m the manner provided in Section 428 for pub- 
lication of summons on complaint to be filed, to show cause, if any he or they 
may have, why such judgment should not be revived; and if no good cause be 
shown to the contrary, it shall be decreed that such judgment is revived. And 
such judgment shall thereupon constitute a lien upon the real estate of the 



§ 739 Code of Civil Procedure 202 

before such Judge, at a time and place specified in the order within the county 
to which the execution was issued. 

After the issuing of an execution against property, and upon proof by affidavit 
of a party, or otherwise, to the satisfaction of the Court, or a Judge thereof, 
that any judgment debtor has property which he unjustly refuses to apply to- 
wards the satisfaction of the judgment, such Court or Judge may, by an order, 
require the judgment debtor to appear at a specified time and place to answer 
concerning the same; and such proceedings may thereupon be had for the ap- 
plication of the property of the judgment debtor towards the satisfaction of 
the judgment as are provided upon the return of an execution. 

On an examination under this Section, either party may examine witnesses 
in his behalf, and the judgment debtor may be examined in the same manner 
as a witness. 

Instead of the order requiring the attendance of the judgment debtor, the 
Judge may, upon proof by affidavit, or otherwise, to his satisfaction, that there 
is danger of the debtor's leaving the State or concealing himself, and that 
there is reason to believe he has property which he unjustly refuses to apply 
to such judgment, issue a warrant requiring the Sheriff of any county where 
such debtor may be, to arrest him and bring him before such Judge. Upon being 
brought before the Judge, he may be examined on oath, and, if it then appears 
that there is danger of the debtor 's leaving the State, and that he has property 
which he has unjustly refused to apply to such judgment, ordered to enter 
into an undertaking, with one or more sureties, that he will, from time to time, 
attend before the Judge, as he shall direct, and that he will not, during the 
pendency of the proceedings, dispose of any portion of his property not exempt 
from execution. In default of entering into such undertaking, he may be com- 
mitted to prison by warrant of the Judge, as for a contempt. 

No person shall, on examination, pursuant to this Chapter, be excused from 
answering any question on the ground that his examination will tend to con- 
vict him of the commission of a fraud; but his answer shall not be used as evi- 
dence against him in any criminal proceeding or prosecution. Nor shall he be 
excused from answering any question, on the ground that he has, before the 
examination, executed any conveyance, assignment, or transfer of his property 
for any purpose; but his answer shall not be used as evidence against him in 
any criminal proceeding or prosecution. 

Any Debtor to Execution Debtor May Pay His Debt to Sheriff. — After 
the issuing of execution against property, any person indebted to the judgment 
debtor may pay to the Sheriff the amount of his debt, or so much thereof as 
shall be necessary to satisfy the execution; and the Sheriff's receipt shall be a 
sufficient discharge for the amount so paid. 

Civ. P. '22, § 613; Civ. P. '12, § 351; Civ. P. '02, § 312; 1870, XIV, §§ 318, 319; 1919, 
XXXI, 236. 

§ 739. Examination of Debtors of Judgment Debtor, or of Persons Having 
Property Belonging to Him. — After the issuing or return of an execution 
against property of the judgment debtor, or of any one of several debtors in 
the same judgment, and upon an affidavit that any person or corporation has 
property of such judgment debtor, or is indebted to him in an amount exceeding 
ten dollars, the Judge may, by an order, require such person or corporation, or 
any officer or member thereof, to appear at a specified time and place, and answer 
concerning the same. The Judge may also, in his discretion, require notice of such 



203 Code of Civil Procedure § 740 

proceeding to be given to any party to the action, in such manner as may seem 
to him proper. 

The proceedings mentioned in this Section, and in Section 613, may be taken 
upon the return of an execution unsatisfied issued upon a judgment recovered 
in an action against joint debtors, in which some of the defendants have not 
been served with the summons by which said action was commenced, so far as 
relates to the joint property of such debtors ; and all actions by creditors to ob- 
tain satisfaction of judgments out of the property of joint debtors are main- 
tainable in the like manner and to the like effect. These provisions shall apply 
to all proceedings and actions now pending, and not actually terminated by any 
final judgment or decree. 

Civ. P. '22, § 614 ; Civ. P. '12, § 352 ; Civ. P. '02, § 314 ; 1870, XIV, § 320. 

§ 740. Witnesses Required to Testify. — Witnesses may be required to ap- 
pear and testify on any proceedings under this Chapter, in the same manner 
as upon the trial of an issue. 

Civ. P. '22, § 615 ; Civ. P. '12, § 353 ; Civ. P. '02, § 315 ; 1870, XIV, § 321. 

§ 741. Compelling Party or Witnesses to Attend. — The party or witness 
may be required to attend before the Judge, or before a referee appointed by 
the Court or Judge. If before a referee, the examination shall be taken by the 
referee, and certified to the Judge. All examinations and answers before a 
Judge or referee, under this Chapter, shall be on oath, except that when a cor- 
poration answers, the answer shall be on the oath of an officer thereof. 

Civ. P. '22, § 616 ; Civ. P. '12, § 354 ; Civ. P. '02, § 316 ; 1870, XIV, § 322. 

§ 742. What Property May Be Ordered to Be Applied to Execution. — The 

Judge may order any property of the judgment debtor, not exempt from exe- 
cution, in the hands either of himself or any other person, or due to the judg- 
ment debtor, to be applied towards the satisfaction of the judgment ; except that 
the earnings of the debtor for his personal services, at any time within sixty 
days next preceding the order, cannot be so applied, when it is made to appear 
by the debtor's affidavit or otherwise, that such earnings are necessary for the 
use of a family supported wholly or partly by his labor. 

Civ. P. '22, § 617 ; Civ. P. '12, § 355 ; Civ. P. '02, § 317 ; 1870, XIV, § 323. 

§ 743. Judge May Appoint Receiver and Prohibit Transfer of Property. — 

The Judge may also, by order, appoint a receiver of the property of the judg- 
ment debtor, in the same manner, and with the like authority, as if appointment 
was made by the Court, according to Section 524. But before the appointment 
of such receiver, the Judge shall ascertain, if practicable, by the oath of the 
party or otherwise, whether any other supplementary proceedings are pending 
against the judgment debtor, and if such proceedings are so pending, the plain- 
tiff therein shall have notice to appear before him, and shall likewise have notice 
of all subsequent proceedings in relation to said receivership. No more than one 
receiver of the property of a judgment debtor shall be appointed. The Judge 
may also, by order, forbid a transfer or other disposition of the property of the 
judgment debtor not exempt from execution, and any interference therewith. 

"Whenever the Judge shall grant an order for the appointment of a receiver 
of the property of the judgment debtor, the same shall be filed in the office of 
the Clerk of the Court of Common Pleas of the county where the judgment roll 
in the action, or transcript from Magistrate's judgment, upon which the pro- 
ceedings are taken, is filed ; and the said Clerk shall record the order in a book, 
to be kept for that purpose in his office, to be called "Book of Orders Appoint- 
ing Receivers of Judgment Debtors," and shall note the time of the filing of 



§ 744 Code of Civil Procedure 204 

said order therein. A certified copy of said order shall be delivered to the re- 
ceiver named therein, and he shall be vested with the property and effects of 
the judgment debtor from the time of the filing and recording of the order as 
aforesaid. The receiver of the judgment debtor shall be subject to the direction 
and control of the Court in which the judgment was obtained, or docketed, upon 
which the proceedings are founded. 

A certified copy of said order shall also be filed and recorded in the office of 
the Register of Mesne Conveyances of the county in which any real estate of 
such judgment debtor sought to be affected by such order is situated, and, also 
in the office of the Register of Mesne Conveyances of the county in which such 
judgment debtor resides. 

Civ. P. '22, § 618 ; Civ. P. '12, § 356 ; Civ. P. '02, § 318 ; 1870, XIV, § 324. 

§ 744. Proceedings on Claims of Others to Property or on Denial of In- 
debtedness. — If it appear that a person or corporation alleged to have property 
of the judgment debtor, or, indebted to him, claims an interest in the property 
adverse to him, or denies the debt, such interest or debt shall be recoverable 
only in an action against such person or corporation by the receiver ; but the 
Judge may, by order, forbid a transfer or other disposition of such property 
or interest, till a sufficient opportunity be given to the receiver to commence 
the action, and prosecute the same to judgment and execution; but such order 
may be modified or dissolved by the Judge granting the same, at any time, on 
such security as he shall direct. 

Civ. P. '22, § 619 ; Civ. P. '12, § 357 ; Civ. P. '02, § 319 ; 1870, XIV, § 325. 

§ 745. Reference by Judge. — The Judge may, in his discretion, order a 
reference to a referee agreed upon by the parties, or appointed by him, to re- 
port the evidence or the facts, and may, in his discretion, appoint such referee 
in the first order, at any time. 

Civ. P. '22, § 620 ; Civ. P. '12, § 358 ; Civ. P. '02, § 320 ; 1870, XIV, § 326. 

§ 746. Cost of Proceeding. — The Judge may allow to the judgment credi- 
tor, or to any party so examined, whether a party to the action or not, witness 
fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, 
as costs. 

Civ. P. '22, § 621 ; Civ. P. '12, § 359 ; Civ. P. '02, § 321 ; 1870, XIV, § 327. 

§ 747. Punishment for Contempt. — If any person, party or witness, dis- 
obey an order of the Judge or referee, duly served, such person, party or 
witness may be punished by the Judge as for a contempt. And, in all cases of 
commitment under this Chapter, the person committed may, in case of inability 
to perform the act required, or to endure the imprisonment, be discharged from 
imprisonment by the Court or Judge committing him, or the Court in which 
the judgment was rendered, on such terms as may be just. 

Civ. P. '22, § 622 ; Civ. P. '12, § 360 ; Civ. P. '02, § 322 ; 1870, XIV, § 328. 



205 Code of Civil Procedure § 748 

TITLE 11 

Costs in Civil Actions 

748. C'osts follow Event of Action. 756. Costs on Motion. 

749. Partition and Foreclosure Suits. 757. Infant Plaintiff. 

750. Costs on x\ppeal to Supreme Court. 758. Costs in Actions by or Against Repre- 

751. Actions in Original Jurisdiction of sentative. 

Siipreme Court. 759. Review of Decision in Special Proceed- 

752. Execution for Costs. ing. 

753. Interest on Verdict or Report. 760-1. Action by State. 

754. Taxation of Costs. 762. Assignment after Commencement of 

755. Postponement of Trial. Action. 

§ 748. Costs Follow Event of Action, Except in Chancery Cases When 
Otherwise Ordered — Proviso. — In every civil action commenced or prosecuted 
in the Courts of record in this State (except cases in chancery) the attorneys 
of plaintiff or defendant shall be entitled to recover costs and disbursements of 
the adverse party, as prescribed in this Chapter, such costs to be allowed as 
of course to the attorneys of plaintiff or defendant, and all officers of the Court 
thereto entitled, accordingly as the action may terminate, and to be inserted in 
the judgment against the losing party. In cases in chancery, the same rule as 
to costs shall prevail, unless otherwise ordered by the Court: Provided, That 
wherever, in action for assault, battery, false imprisonment, libel, slander, ma- 
licious prosecution, criminal conversation or seduction, or in any other action 
for damages for torts, the amount recovered shall be less than one hundred 
dollars, the total amount of costs and disbursements shall not exceed the amount 
so recovered in the action. 

Civ. P. '22. § 572 ; Civ. '12, § 4204 ; Civ. '02, § 3096 ; G. S. 2425 ; R. S. 2.547 ; Code Proc. 
§ 361 ; 1883, XVIII, 449 ; 1892. XXI, 30 ; Civ. P. '22, § 623 ; Civ. P. '12, § 361 ; Civ. P. '02, 
§ 323 ; 1870, XIV, § 335. 

§ 749. Cases in Partition of Property and Foreclosure of Property of Cer- 
tain Value. — All allowances for costs prescribed by this Chapter to which the 
provisions of this Section are applicable shall be subject thereto. 

(1) The costs allowed by law in all cases of partition where the property 
sought to be partitioned does not exceed one thousand dollars in value, and in 
actions for foreclosure of mortgage where the amount claimed does not exceed 
five hundred dollars, shall be one-half of the cost allowed in cases where the 
value exceeds those sums, and this provision shall apply to all costs in the cause. 

(2) Costs and Expenses in Settlement of Estates — Certain Yaeues. — 
All the items of cost and expenses allowed by law in the administration and 
settlement of estates, where the amount of such estate is less than one hun- 
dred dollars, shall be one-half the amount as now provided by law. 

(3) Costs for References. — Costs for references shall only be taxed for 
the number of days which the Master shall certify to have been unavoidably 
necessary, and no costs shall be taxed for references where no testimony has 
been taken, or argument had. 

(4) Costs Only to Successful Party — Costs on Proving Claims. — No 
costs shall be allowed to any party unless he succeed, in whole or in part, in his 
claim or defense, unless otherwise directed by the Judge hearing the cause. No 
costs shall be allowed for proving uncontested claims; and in proving other 
claims by attorneys not of record, no costs shall be allowed except for the days 
in which the Master or referee is occupied in taking proof for or against such 
claim. 



§ 761 Code of Civil Procedure 208 

§ 761. Same. — In an action prosecuted in the name of the State, for the re- 
covery of money or property, or to establish a right of claim for the benefit of 
any county, city, town, village, corporation, or person, costs awarded against 
the plaintiff shall be a charge against the party for whose benefit the action 
was prosecuted, and not against the State. 

Civ. P. '22, § 634 ; Civ. P. '12, § 372 ; Civ. P. '02, § 333 ; 1870, XIV, § 346. 

§ 762. Costs Against Assignee, After Action Brought. — In actions in which 
the cause of action shall, by assignment after the commencement of the action 
or in any other manner, become the property of a person not a party to the 
action, such person shall be liable for the costs and disbursements in the same 
manner as if he were a party, and payment thereof may be enforced by attach- 
ment. 

Civ. P. '22, § 635 ; Civ. P. '12, § 373 ; Civ. P. '02, § 334 ; 1870, XIV, § 347. 



TITLE 12 
Appeals in Civil Actions 

Chapter 1. Appeals in General, § 763. 

Chapter 2. Appeals to the Supreme Court, § 772. 

Chapter 3. Appeals to the Circuit Court from an Inferior Court, § 786. 



CHAPTER 1 
Appeals in General 

763. Mode of Review. 767. Notice of Appeal. 

764. Vacating or Modifying Orders Made 768. Clerk to Transmit Papers. 
Without Notice. 769. Review of Intermediate Order. 

765. Who May Appeal. 770. Judgment on Appeal. 

766. Designation of Parties. 771. When Printing Unnecessary. 

§ 763. Mode of Reviewing Judgment or Order. — The only mode of review- 
ing judgment or order in a civil or criminal action, shall be prescribed by this 
Title. 

Civ. P. '22, § 636 ; Civ. P. '12, § 374 ; Civ. P. '02, § 335 ; 1870, XIV, § 349. 

§ 764. Orders Made Out of Court — How Vacated or Modified. — An order, 
made out of Court, without notice to the adverse party, may be vacated or 
modified, without notice, by the Judge who made it, or may be vacated or modi- 
fied, on notice, in the manner in which other motions are made. 

Civ. P. '22, § 637 ; Civ. P. '12, § 375 ; Civ. P. '02, § 336 ; 1870, XIV, § 350. 

§ 765. Who May Appeal. — Any party aggrieved may appeal in the cases 
prescribed in this Title. 

Civ. P. '22, § 638 ; Civ. P. '12, § 376 ; Civ. P. '02, § 337 ; 1870, XIV, § 351. 

§ 766. Parties — How Designated on Appeal. — The party appealing shall be 
known as the appellant, and the adverse party as the respondent. But the title 
of the action shall not be changed in consequence of the appeal. 

Civ. P. '22, § 639 ; Civ. P. '12, § 377 ; Civ. P. '02, § 338 ; 1870, XIV, § 352. 

§ 767. Appeal — How Made — ^Notice. — ^An appeal must be made by the 
service of a notice in writing, on the adverse party, or his attorney, and in the 
cases provided by law, on the Judge or Magistrate, or other officer who heard 
the cause, with whom the judgment or order appealed frorb is entered, stating 



209 Code of Civil Procedure § 768 

the appeal from the same, or some specific part thereof. The service of the notice 
of appeal of a cause heard by a Magistrate may be made by mailing said notice, 
properly addressed, and with sufficient postage, to the Magistrate who heard the 
cause. (2) When a part^^ shall give, in good faith, notice of appeal from a judg- 
ment or order and shall omit, through mistake, to do any other act necessary 
to perfect the appeal or to stay proceedings, the Court may permit an amend- 
ment on such terms as may be just. 

Civ. P. '22, § 640; Civ. P. '12, § 378; Civ. P. '02, § 339; 1870, XIV, 353; 1878, XVI. 698; 
1880, XVII, 368 ; 1912, XXVII, 625. 

§ 768. Clerk to Transmit Papers to Appellate Court. — If the appellant shall 
not, within twenty days after his appeal is perfected, cause a certified copy of 
the notice of appeal and of the judgment roll, or, if the appeal be from an order 
or any part thereof, a certified copy of such order, and the papers upon which 
the order was granted, to be transmitted to the appellate Court by the Clerk with 
whom the notice of appeal is filed, the respondent may cause such certified copy 
to be transmitted by such Clerk to the appellate Court, and recover the ex- 
penses thereof, as a disbursment on such appeal, in case the judgment or order 
appealed from shall be in whole or in part affirmed; and this provision shall 
apply to all appeals heretofore taken, where the appeal has not been dismissed 
in the manner provided by the rules of the appellate Court. 

Civ. P. '22, § 641 ; Civ. P. '12, § 379 ; Civ. P. '02, § 340 ; 1870, XIV, § 354. 

§ 769. Review of Intermediate Orders Affecting Judgment. — Upon an ap- 
peal from a judgment, the Court may review any intei^mediate order involving 
the merits and necessarily affecting the judgment. 

Civ. P. '22, § 642 ; Civ. P. '12, § 380 ; Civ. P. '02, § 341 ; 1870, XIV, § 355. 

§ 770. Judgment on Appeal. — Upon an appeal from a judgment or order, 
the appellate Court may reverse, affirm, or modify the judgment or order ap- 
pealed from in the respect mentioned in the notice of appeal, and as to any 
or all of the parties, and may, if necessary or proper, order a new trial. When 
the judgment is reversed or modified, the appellate Court may make complete 
restitution of all property and rights lost by the erroneous judgment. 

Civ. P. '22, § 643 ; Civ. P. '12, § 381 ; Civ. P. '02, § 342 ; 1870, XIV, § 356. 

§ 771. How and When Printing, Etc., Dispensed With. — No rule or order 
of any Court or Judge shall require the printing of any brief, report, or other 
paper connected wdth appeals by any party to an action or proceeding, who 
makes an affidavit, to be filed with the Clerk of the Supreme Court, that he or 
she is unable to pay for such printing. 

Civ. P. '22, § 644 ; Civ. P. '12, § 382 ; Civ. P. '02, § 343 ; 1873, XV, 501. 



CHAPTER 2 
Appeals to the Supreme Court 

772. Cases Appealable. 777. Perfecting Appeals. 

773. Necessary Steps in Appealing Case. 778. Staying Execution of Judgment for De- 
774-780-1-784. Stay of Execution. livery of Personalty. 

775. New Undertaking when Sureties Be- 779. Judgment Directing Execution of In- 
come Insolvent. strument. 

776. Extension of Time for Perfecting Ap- 782-785. Undertakings. 

peal. 783. Justification and Approval of Sureties. 

§ 772. Appeal in What Cases. — An appeal may be taken to the Supreme 
Court in the cases mentioned in Section 26. When the Circuit Court shall render 



§ 773 Code of Civil Procedure 210 

judgment upon a verdict taken, subject to the opinion of the Court, the ques- 
tions or conclusions of law, together with a concise statement of the facts upon 
which they arose, shall be prepared by and under the direction of the Court, 
and shall be filed with the judgment roll, and be deemed a part thereof, for the 
purposes of a review in the Supreme Court. 

The provisions of this Section shall apply to any judgment therein mentioned 
that has been heretofore rendered, and upon which an appeal has been brought 
and is now pending, or upon which an appeal shall hereafter be brought. When 
the return has already been filed with the Clerk of the Supreme Court, such 
statement shall be filed with him, and be deemed a part of such return. 

Civ. P. '22, § 645 ; Civ. P. '12, § 383 ; Civ. P. '02, § 344 ; 1870, XIV, § 358. 

§ 773. Notice of Intention to Appeal — Serving Case With Exceptions — 
Objections and Alterations. — (1) In every appeal to the Supreme Court from 
an order, decree or judgment granted or rendered at chambers from which 
an appeal may be taken to the Supreme Court the appellant or his attorney 
shall, within ten days after written notice that the said order has been granted or 
decree or judgment rendered, give notice to the opposite party or his attorney 
of his intention to appeal, and in all other appeals to the Supreme Court the ap- 
pellant or his attorney shall, within ten days after the rising oJpthe Circuit Court, 
give like notice of his intention to appeal to the opposite party or his attorney, 
and within thirty days after said notice the appellant or his attorney shall pre- 
pare a case with exceptions and serve them on the opposite party or his attorney. 
The respondent within ten days after service of such case may propose any 
objections thereto or alterations thereof, and the case shall be settled in such 
mode as may be provided in the rules of the Supreme Court : Provided, That 
whenever a motion for a new trial upon the Judge's minutes shall have been 
made and the decision thereon not be both heard and filed at the term at which 
the trial is had, then notice of intention to appeal either from the judgment or 
the order granting or refusing a new trial shall be given to the opposite party 
or his attorney within ten days after written notice that such order has been 
granted or rendered. 

(2) Docketing of Cause. — The case shall be placed on the docket of the Su- 
preme Court at such time as may be fixed by the rules of the Supreme Court. 

(3) Waiver by Failure to Perfect Appeal,. — Whenever the appellant shall 
fail to perfect his appeal, his failure to do so shall amount to a waiver thereof, 
unless the Court permit the appeal to be perfected as provided in Sections 767 
and 777. 

(4) Agreements Upon Statement of Case. — Upon appeals to the Supreme 
Court, in case the attorney for the appellant and respondent shall agree upon a 
statement of the case as prepared by them for the hearing by the Supreme 
Court, such statement of the case shall be a sufficient brief of the same, and no 
return or other paper from the Circuit Court shall be required. 

Upon the transmission of a certified copy of such agreement to the Clerk of 

the Appellate Court, within the time now required by law, he shall place said 

cause on the docket for a hearing by said Court. 

Civ. P. '22, § 646 ; Civ. P. '12, § 384 ; Civ. P. '02, § 345 ; 1875, XV, 862 ; 1878, XVI, 698 ; 
1889, XX, 356 ; 1902, XXIII, 1905. 

§ 774. When Notice of Appeal May Stay Execution — Undertaking on Ap- 
peal. — ^A notice of appeal from a judgment directing the payment of money 
shall not stay the execution of the judgment, unless the presiding Judge be- 
fore whom the judgment was obtained shall grant a stay of execution ; but. 



211 Code of Civil Procedure § 775 

after notice of appeal, the plaintiff shall not enforce a sale of property without 
giving an undertaking or bond to the defendant, with two good sureties, in 
double the appraised value of the property, or double the amount of the judg- 
ment, conditioned to pay all damages which the defendant may sustain by rea- 
son of such sale, in case the judgment is reversed. Nor shall the plaintiff in such 
case be allowed to proceed with a sale of defendant's property if the defendant 
do enter into an undertaking, with good sureties, in double the appraised value 
of the said property, or the amount of the judgment, to pay the judgment with 
legal interest, and all costs and damages which the plaintiff may sustain by rea- 
son of the appeal, or produce the property levied on, and submit to the sale 
in case the judgment be confirmed. 

Civ. P. '22, § 647 ; Civ. P. '12, § 385 ; Civ. P. '02, § 346 ; 1870, XIY, § 360 ; 1873, XV, 501. 

§ 775. New Undertaking in Case Sureties Insolvent. — Whenever it shall 
be made satisfactorily to appear to the Court that since the execution of the 
undertaking the sureties have become insolvent, the Court may, by rule or or- 
der, require the appellant to execute, file and serve a new undertaking as 
above; and, in case of neglect to execute such undertaking within twenty days 
after the service of a copy of the rule or order requiring such new undertaking, 
the appeal may, 9n motion to the Court, be dismissed with costs. Whenever it 
shall be necessary for a party to any action or proceeding to give a bond or an 
undertaking with surety or sureties, he may in lieu thereof, deposit with the 
officer or into Court, as the case may require, money to the amount for which 
such bond or undertaking is to be given. The Court in which such action or 
proceeding is pending may direct what disposition shall be made of such mon- 
ey, pending the action or proceeding. In any case where, by this Section, the 
money is to be deposited with an officer, a Judge of the Court, in term or at 
chambers, upon the application of either party, may, before such deposit is 
made, order it to be deposited in Court instead of with such officer; and a de- 
posit, made pursuant to such order, shall be of the same effect as if made with 
such officer. 

Civ. P. '22, § 648 ; Civ. P. '12, § 386 ; Civ. P. '02, § 347 ; 1870, XIV, § 360. 

§ 776. Extending Time for Certain Steps in Appeals. — The time for tak- 
ing any step or proceeding in the preparation and perfection of appeals from 
the Circuit Courts to the Supreme Court, as now prescribed by law, may be 
extended by the Judge who heard the cause, or by any one of the justices of 
the Supreme Court, upon four days' notice of such motion being first given to the 
opposite party, except the time of giving notice of appeal to the opposite party. 

Civ. P. '22, § 649; Civ. P. '12, § 387; Civ. P.. '02, § 348; 1880, XYII, 368. 

§ 777. Appeal— How Perfected. — When any party shall omit, through mis- 
take or inadvertence, to do any act or acts necessary to perfect an appeal, or 
to stay proceedings, the Supreme Court may, in their discretion, permit such 
act or acts to be done at any time to perfect the appeal on such terms as may 
be just, provided that the Court shall be satisfied that the appeal was taken 
loiia fide, and provided that notice of the same was given as now required by law. 

Civ. P. '22, § 650 ; Civ. P. '12, § 388 ; Civ. P. '02, § 349 ; 1880, XVII, 368. 

§ 778. Judgments for Delivery of Documents or Personalty Require its 
Deposit or Security. — If the judgment appealed from direct the assignment 
or delivery of documents or personal property, the execution of the judgment 
shall not be stayed by appeal, unless the things required to be assigned or de- 
livered be brought into Court, or placed in the custody of such officer or re- 
ceiver as the Court shall appoint, or unless an undertaking be entered into on 



§ 779 Code of Civil Procedure 212 

the part of the appellant, by at least two sureties, and in such amount as the 
Court, or a Judge thereof, shall direct, to the effect that the appellant will obey 
the order of the Supreme Court upon the appeal. » 

Civ. P. '22, § 651 ; Civ. P. '12, § 389 ; Civ. P. '02, § 350 ; 1870, XIV, § 361. 

§ 779. Judgment to Execute Conveyance Requires its Execution and De- 
posit. — If the judgment appealed from direct the execution of a conveyance 
or other instrument, the execution of the judgment shall not be stayed by the 
appeal until the instrument shall have been executed and deposited with the 
Clerk with whom the judgment is entered, to abide the judgment of the Su- 
preme Court. 

Civ. P. '22, § 652 ; Civ. P. '12, § 390 ; Civ. P. '02, § 351 ; 1870, XIV, § 362. 

§ 780. When Appeal Will Stay Execution, and When Not. — If the judg- 
ment appealed from direct the sale or delivery of possession of real property, 
the execution of the same shall not be stayed unless a written undertaking be 
executed on the part of the appellant, with two sureties, to the effect that, dur- 
ing the possession of such property by the appellant, he will not commit, or suf- 
fer to be committed, any waste thereon, and that if the judgment be affirmed, 
he will pay the value of the use and occupation of the property, from the time 
of the execution of the undertaking until the delivery of possession thereof, 
pursuant to the judgment, not exceeding a sum to be fixed by a Judge of the 
Court by which judgment was rendered, and which shall be specified in the 
undertaking. When the judgment directs the sale of land to satisfy a mortgage 
thereof or other lien, the undertaking shall provide that in case the judgment 
appealed from be affirmed, and the said land be finally sold for less than the 
judgment debt and costs, then the appellant shall pay for any waste com- 
mitted, or suffered to be cornmitted, on said lands, and shall pay a reasonable 
rental value for the use and occupation of said land from the time of the execu- 
tion of said undertaking to the time of said sale, but not exceeding the amount 
of such deficiency, which said sum shall be duly entered as a payment on said 
judgment; and in case the said lands shall be unimproved lands, then in any 
action or proceeding now pending or hereafter begun in any of the Courts of 
this State, said undertaking shall further provide for the payment by appellant 
(if the judgment be affirmed) of any taxes due at the time of such appeal, or al- 
ready paid by the mortgagee, or becoming due during the pendency of said 
appeal, and also for the payment by appellant of the interest on the debt fall- 
ing due during the pendency of such appeal. 

Civ. P. '22, § 653 ; Civ. P. '12, § 391 ; Civ. P. '02, § 352 ; 1870, XIV, 363 ; 1898, XXII, 689 ; 
1900, XXIII, 351. 

§ 781. Stay of Proceedings Upon Security Being Given. — Whenever the de- 
fendant executes the bond hereinbefore prescribed, or the appeal is perfected 
as provided by Sections 774, 778, 779 and 780, it shall stay all further pro- 
ceedings in Court below upon the judgment appealed from, or upon the matter 
embraced therein ; but the Court below may proceed upon any other matter in- 
cluded in the action, and not affected by the judgment appealed from. And the 
Court below may, in its discretion, dispense with or limit the security required 
by Sections 774, 778 and 780, when the appellant is an executor, administrator, 
trustee, or other person acting in another's right; and may also limit such se- 
curity • to an amount not less than fifty thousand dollars, in the cases men- 
tioned in Sections 778, 779 and 780, where it would otherwise, according to 
those Sections, exceed that sum. 

Civ. P. '22, § 654 ; Civ. P. '12, § 392 ; Civ. P. '02, § 353 ; 1870, XIV, § 364 ; 1873, XV, 501. 



213 Code of Civil Procedure § 782 

§ 782. Undertakings May Be in One Instrument or Several.— The under- 
takings prescribed by Sections 774, 775 and 780, may be in one instrument or 
several, at the option of the applicant, and a copy, including the names and 
residences of the sureties, must be served on the adverse party, with notice of 
appeal, unless a deposit is made as provided in Section 775, and notice thereof 
given. 

Civ. P. '22, § 655 ; Civ. P. '12, § 393 ; Civ. P. '02, § 354 ; 1870, XIV, § 365 ; 1873, XV, 501. 

§ 783. Securities to Be Approved and Sureties to Justify. — An under- 
taking upon an appeal shall be of no effect unless it be accompanied by the 
affidavit of the sureties that they are each worth double the amount speci- 
fied therein. The respondent may, however, except to the sufficiency of the sure- 
ties within ten days after the notice of appeal ; and unless they or other sureties 
justify before a Judge or Clerk of the Court below, as prescribed by Sections 
507 and 508, within ten days thereafter, the appeal shall be regarded as if no 
undertaking had been given. The justification shall be upon notice of not less 
than five days. No clerk shall take the justification of any surety or sureties in 
a ease in which he may be interested, or when either of the parties or such 
surety or sureties shall be connected with him by affinity or consanguinity with- 
in the sixth degree, and in all cases where the clerk may have approved or dis- 
approved of the sufficiency of a surety or sureties his action may be reviewed, on 
motion, after notice before a circuit Judge. And in case at any time in any 
action now pending or hereafter brought a respondent shall be of opinion that 
the surety or sureties on any bond already approved are insufficient and shall 
make affidavit of the fact, setting out the grounds of such belief and serving 
a copy thereof upon appellant's attorney, then the said sureties or other sureties 
shall justify anew thereon in the same manner and with the same effect as 
though such new justification were an original justification on said bond. 

Civ. P. '22, § 656 ; Civ. P. '12, § 391 ; Civ. P. '02, § 3-55 ; 1901, XXIII, 697. 

§ 784. When Appeal Stays Proceedings Below — Exceptions. — In cases not 
provided for in Sections 774, 778, 780, and 781, the notice of appeal shall stay 
proceedings in the Court below, upon the judgment appealed from, except that 
where it directs the sale of perishable property, the Court below may order the 
property to be sold and the proceeds thereof to be deposited, or invested in this 
State or United States bonds, to abide the judgment of the Supreme Court : 
Provided, An appeal from a judgment or decree overruling a demurrer shall 
stay the further hearing of the cause unless the presiding Judge shall be sat- 
isfied that the ends of justice will be subserved by proceeding with the trial, 
and shall order the trial of the cause to proceed to judgment : Provided, further, 
That nothing contained in the preceding proviso shall be construed to prevent 
a review upon appeal from the final order or judgment in the cause of any judg- 
ment or decree on demurrer. 

Civ. P. '22, § 657 ; Civ. P. '12, § 395 ; Civ. P. '02, § 356 ; 1887, XVIII, 837 ; 1889, XX, 355. 

§ 785. Undertaking Must Be Filed.— The undertaking must be filed with 
the clerk with whom the judgment or order appealed from was entered. The 
provisions of this Chapter, as to the security to be given upon appeals, and as 
to the stay of proceedings, shall apply to appeals taken under Sudbivision 3 of 
Section 26. 

Civ. P. '22, § 658 ; Civ. P. "'12, § 396 ; Civ. P. '02, § 357 ; 1870, XIV, § 368. 



§ 786 Code of Civil Procedure 214 

CHAPTER 3 

Appeal to the Circuit Court From an Inferior Court 

I 

786. Appeals from Inferior Courts. 795. Appeal Heard on Origin^: Papers. 

787. Time Within Which to Appeal. 796. Judgment on Appeal and new Trial. 
788-9. Notice of Appeal. 797. Judgment Roll. 

790-2. Return. 798. Costs. 

793. Return when Magistrate Unavailable. 799. Reversal of Paid Judgment. 

794. Hearing upon Return. 800. Setting-off Cost and Recovery. 

801. Costs on Appeal. 

§ 786. Appeals From Inferior Courts — Supersedeas — Hearing on the Pa- 
pers. — -When a judgment is rendered by a Magistrate's Court, by the County 
Commissioners or any other inferior Court or jurisdiction, save the Probate Court 
heretofore provided for in this Code of Procedure, the appeal shall be to the 
circuit Court of the county wherein the judgment was rendered, and shall 
amount to a supersedeas, if the party against whom judgment is rendered shall 
execute a good and sufficient bond with surety to pay the amount of the judg- 
ment and costs in the event that he fail to sustain such appeal, and in all cases in 
v^^hich such bond with surety shall be filed no execution shall issue until the 
termination of such appeal. The said appeal shall be heard by the Court upon 
all the papers in the case, including the testimony on the trial, which shall be 
taken down in writing and signed by the witnesses, and the grounds of excep- 
tion made, without the examination of witnesses in Court. 

Civ. P. '22, § 659 ; Civ. P. '12, § 397 ; Civ. P. '02, § 358 ; 1870, XIV, § 369, 1887, XIX, 832. 

§ 787. Appeal — When to Be Taken. — The appellant shall within five days 
after written notice of judgment has been given him or his attorney by the 
Magistrate (except when the judgment is announced at the trial in the pres- 
ence of the appellant or his attorney, in which event no written notice shall 
be necessary), serve a notice of appeal, stating the grounds upon which the 
appeal is founded. If the judgment is rendered upon process not personally 
served, and the defendant did not appear, he shall have five days, after personal 
notice of the judgment, to serve the notice of appeal provided for in this and 
the next section. 

Civ. P. '22, § 660 ; Civ. P. '12, § 398 ; Civ. P. '02, § 359 ; 1870, XIV, § 370 ; 1911, XXVII, 140. 

§ 788. Notice of Appeal to Be Served on Magistrate, and on Respondent, 

Agent or Attorney. — The notice of appeal must, within the same time, be served 

on the Magistrate personallj^, if living and within the county, or on his clerk, 

if there be one, and upon the attorney for the respondent, or on the respondent 

personally, or by leaving it at his residence, with some person of suitable age 

and discretion ; or in case the respondent is not a resident of such county, or 

cannot, after due diligence, be found therein, in the same manner, on the agent, 

if any, who is a resident of such county, who appeared for the respondent on 

the trial ; and, if neither the respondent nor such agent or attorney can be 

found in the county, the notice may be served on the respondent by leaving it 

with the Clerk of the appellate Court. 

Civ. P. '22, § 661 ; Civ. P. '12, § 399 ; Civ. P. '02, § 360 ; 1870, XIV, § 371 ; 1873, XV, 501, 
§ 20 ; 1880, XVII, 306. 

§ 789. Filing in Lieu of Service of Notice of Appeal. — When by reason of 
the death of a Magistrate, or his absence from the county, or any other cause, 
the notice of appeal cannot be served as provided by Section 661, it may be 
served by leaving the same with the Clerk of the county. 

Civ. P. '22, § 662 ; Civ. P. '12, § 400 ; Civ. P. '02, § 361 ; 1870, XIV, § 376. 



215 Code of Civil Procedure § 790 

§ 790, Return — When and How Made and Compiled. — The Court below 
shall thereupon, after ten days, and within thirty days after service of the no- 
tice of appeal, make a return to the appellate Court of the testimony, proceed- 
ings, and judgment, and file the same in the appellate Court. The return may 
be compelled by attachment. 

Civ. P. '22, § 663 ; Civ. P. '12, § 401 ; Civ. P. '02, § 362 ; 1870, XIV, § 377 ; 1880, XVII, 306. 

§ 791. Return— How Made if Magistrate Be Out of Office. — ^When a Mag- 
istrate, by whom a judgment appealed from was rendered, shall have gone out 
of office before a return is ordered, he shall, nevertheless, make a return in the 
same manner, and with the like effect, as if he were still in office. 

Civ. P. '22, § 664 ; Civ. P. '12, § 402 ; Civ. P. '02, § 363 ; 1870, XIV, § 378. 

§ 792. Further Return — Where Defective. — If the return be defective, the 
appellate Court may direct a further or amended return as often as may be 
necessary, and may compel a compliance with its order by attachment. And the 
Court shall always be deemed open for these purposes. 

Civ. P. '22, § 665 ; Civ. P. '12, § 403 ; Civ. P. '02, § 364 ; 1870, XIV, § 379. 

§ 793. Magistrate Dead, Insane or Absent. — If a Magistrate, whose judg- 
ment is appealed from, shall die, become insane, or remove from the State, be- 
fore having made a return, the appellate Court may examine witnesses on oath 
as to the facts and circumstances of the trial or judgment, and determine the 
appeal, as if the facts had been returned by the Magistrate. If he shall have re- 
moved to another county within the State, the appellate Court may compel him 
to make the return, as if he were still within the county where the judgment was 
rendered. 

Civ. P. '22, § 666 ; Civ. P. '12, § 404 ; Civ. P. '02, § 365 ; 1870, XIV, § 380. 

§ 794. Hearing Upon Return. — If a return be made, the appeal may be 
brought to a hearing by either party. It shall be placed upon the calendar, and 
continue thereon until finally disposed of. But if neither party bring it to a 
hearing before the end of the second term, the Court shall dismiss the appeal, 
unless it continue the same by special order, for cause shown. At least eight 
daj^s before the Court, the party desiring to bring on the appeal shall file the 
return and accompanying papers, if any, with the Clerk, and the Clerk shall 
thereupon enter the cause on the calendar, according to the date of the re- 
turn, and it shall stand for trial without any further notice. 

Civ. P. '22, § 667 ; Civ. P. '12, § 405 ; Civ. P. '02, § 366 ; 1870, XIV, § 381. 

§ 795. Appeal to Be Heard on Original Papers. — The appeal shall be heard 
on the original papers, and no copy thereof need be furnished for the use of the 
Court. 

Civ. P. '22, § 668 ; Civ. P. '12, § 406 ; Civ. P. '02, § 367 ; 1870, XIV, § 382. 

§ 796. Judgment on Appeal — New Trial. — (1) Upon hearing the appeal, 
the appellate Court shall give judgment according to the justice of the case, 
without regard to technical errors and defects which do not affect the merits. 
In giving judgment, the Court may affirm or reverse the judgment of the Court 
below, in whole or in part, and as to any or all the parties, and for errors of 
law or fact. If the appeal is founded on an error in fact in the proceedings, not 
affecting the merits of the action, and not within the knowledge of the Mag- 
istrate, the Court may determine the alleged error in fact on affidavits, and 
may, in its discretion, inquire into and determine the same upon examination 
of the witnesses. If the defendant failed to appear before the Magistrate, and 
it is shown by the affidavits served by the appellant, or otherwise, that manifest 



§ 797 Code of Civil Procedure 216 

injustice has been done, and he satisfactorily excuses his default, the Court may, 
in its discretion, set aside or suspend judgment, and order a new trial, before 
the same or any other Magistrate in the same county, at such time and place, 
and on such terms as the Court may deem proper. Where a new trial shall be 
ordered before a Magistrate, the parties must appear before him according to 
the order of the Court, and the same proceedings must thereupon be had in the 
action as on the return of a summons personally served. 

(2) If the issue joined before the Magistrate was an issue of law, the Court 
shall render judgment thereon according to the law of the case ; and if such 
judgment be against the pleadings of either party, an amendment of such plead- 
ing may be allowed on the same terms, and in like case, as pleadings in actions 
in the Circuit Court, and the Court may thereupon require the opposite party to 
answer such amended pleading, or join issue thereon, as the case may require, 
summarily. 

(3) If, upon an appeal in an issue of law, the Court should adjudge the plead- 
ing complained of to be valid, it shall, in like manner, require the opposite party 
summarily to answer such pleading, or join issue thereon, as the case may re- 
quire. 

(4) Every issue of fact so joined or brought upon an appeal shall be tried in 
the manner as provided in Section 786. 

(5) The Court shall have the same power over its own determinations, and 
shall render judgment thereon in the same manner, as the Circuit Court in 
actions pending therein, without trial by jury, and may allow either party to 
amend his pleadings upon such terms as shall be just ; and in any appeal, either 
party may, at any time before the trial, serve upon the opposite party an offer, 
in writing, to allow judgment to be taken against him for the sum or property, 
or to the effect in such offer specified, and with or without costs, as said offer 
shall specify. If the party receiving such offer accept the same, and give notice 
thereof, in writing, within ten days, he may file the return and offer, with an 
affidavit of service of notice of acceptance thereof, and judgment shall be en- 
tered thereon according to said offer. If the notice of acceptance be not given, 
the offer is to be deemed vdthdrawn, and cannot be given in evidence. And if 
the party to whom such offer is made fail to obtain a judgment more favorable 
to him than that specified in said offer, then he shall not recover costs, but must 
pay the other party's costs from the date of the service of the offer. 

(6) Either party may move for a new trial in said Court on a case or excep- 
tions, or otherwise, and such motion may be made before or after judgment has 
been entered; and the provisions of this Code of Procedure in relation to the 
proceedings, exceptions to the decisions of the Court, making and settling cases 
and exceptions, motions for new trials, and making up the judgment roll in the 
Circuit Court, are hereby made applicable to all appeals brought up for trial, 
as in this Chapter provided. 

. Civ. P '22, § 669; Civ. P. '12, § 407; Civ. P. '02, § 368; 1870, XIV, § 383; 1873, XY, 502, 
§20. 

§ 797. Judgment Roll. — To every judgment upon an appeal there shall be 
annexed the return on which it was heard, the notice of appeal, with any offer, 
decision of the Court, exceptions, case, and all orders and papers in any way 
involving the merits and necessarily affecting the judgment, which shall be filed 
with the Clerk of the Court, and shall constitute the judgment roll. 

Civ. P. '22, § 670 ; Civ. P. '12, § 408 ; Civ. P. '02, § 369 ; 1870, XIV, § 383. 

§ 798. Costs. — If the judgment be affirmed, costs shall be awarded to the 
respondent. If it be reversed, costs shall be awarded to the appellant. If it be 



217 Code of Civil Procedure § 799 

affirmed in part, the costs, or such part as to the Court shall seem just, may be 
awarded to either party. 

Civ. P. '22, § 671 ; Civ. P. '12, § 409 ; Civ. P. '02, § 370 ; 1870, XIV, § 384. 

§ 799. Procedure Where Judgment Below Has Been Paid and Is Reversed. 

— If the judgment below, or any part thereof, be paid or collected, and the judg- 
ment be afterwards reversed, the appellate Court shall order the amount paid 
or collected to be restored, with interest from the time of such payment or col- 
lection. The order may be obtained on proof of the facts made at or after the 
hearing, upon a previous notice of six days; and if the order shall be made be- 
fore the judgment is entered, the amount may be included in the judgment. 
Civ. P. '22. § 672 ; Civ. P. '12, § 410 ; Civ. P. '02, § 371 ; 1870, XIV, § 386. 

§ 800. Setting Off Cost and Recovery. — If, upon appeal, a recovery be had 
by one party, and cost be awarded to the other, the appellate Court shall set off 
the one against the other, and render judgment for the balance. 

Civ. P. '22, § 673 ; Civ. P. '12, § 411 ; Civ. P. '02, § 372 ; 1870, XIV, § 387. 

§ 801. Costs on Appeal. — Costs shall be allowed to the prevailing party, in 
judgments rendered on appeal, in all cases, with the following exceptions and 
limitations : In the notice of appeal, the appellant shall state in what particular, 
or particulars, he claims the judgment should have been more favorable to him. 
If he claims that the amount of judgment is less favorable to him than it should 
have been, he shall state what should have been its amount. Within fifteen days 
after the service of the notice of the appeal, the respondent may serve upon the 
appellant and Magistrate an offer, in writing, to allow the judgment to be cor- 
rected in any of the particulars mentioned in the notice of appeal. The ap- 
pellant may thereupon, and within five days thereafter, file with the Mag- 
istrate a written acceptance of such offer, who shall thereupon make a minute 
thereof in his docket, and correct such judgment accordingly, and the same, 
so corrected, shall stand as his judgment, and be enforced accordingly; and 
any execution which has been issued upon the judgment appealed from shall 
be amended by the Magistrate to correspond with the amended judgment. If 
such offer be not made, and the judgment in the appellate Court be more favor- 
able to the appellant than the judgment of the Court below, or if such offer be 
made and not accepted, and the judgment in the appellate Court be more favor- 
able to the appellant than the offer of the respondent, the appellant shall re- 
cover costs : Provided, however, That the appellant shall not recover costs unless 
the judgment appealed from shall be reversed on such appeal, or be made more 
favorable to him, to the amount of at least ten dollars. If the offer be made and 
accepted by the appellant, the appellant shall recover all his disbursements on 
appeal, and all his costs in the Court below. But the appellant shall not recover 
costs, except as provided in this Chapter. The respondent shall be entitled to re- 
cover costs where the appellant is not. Whenever costs are awarded to the ap- 
pellant, and when the judgment in the suit before the Court below was against 
such appellant, he shall further be allowed to tax the costs incurred by him 
which he would have been entitled to recover in case the judgment below had 
been rendered in his favor. If, upon an appeal, a recovery for any debt or dam- 
ages be had by one party, and costs be awarded to the other party, the Court 
shall set off such costs against such debt or damages, and render judgment for 
the balance. The following fees and costs, and no others, except fees of officers, 
disbursements, and witnesses ' fees, shall be allowed, on appeal, to the party en- 
titled to costs, as herein provided, when the new trial is in the Circuit Court : 
for the proceedings before trial, three dollars; for trial of the cause, five dol- 



§ 802 Code of Civil Procedure 218 

lars; when the amount sued for is under twenty dollars, only two dollars and 
fifty cents. If the judgment appealed from be reversed in part, and affirmed as 
to the residue, the amount of costs allowed to either party shall be such sum as 
the appellate Court may award, not exceeding five dollars. If the appeal be dis- 
missed for want of prosecution, as provided by Section 794, no costs shall be 
allowed to either party. In every appeal, the Magistrate, before whom the judg- 
ment appealed from was rendered, shall receive sixty cents for his return. If 
the judgment be reversed, for an error of fact in the proceedings, not affecting 
the merits, costs shall be in the discretion of the Court. If, in the notice of ap- 
peal, the appellant shall not state in what particular, or particulars, he claims 
the judgment should have been more favorable to him, he shall not be en- 
titled to costs, unless the judgment appealed from shall be wholly reversed. 

Civ. P. '22, § 674 ; Civ. P. '12, § 412 ; Civ. P. '02, § 373 ; 1870, XIV, § 388 ; 1873, XV, 502, § 
20, XVII, 297, §§ 2, 7. 



TITLE 13 
Miscellaneous Provisions Respecting Civil Actions 

Chapter 1. Proceedings Against Joint Debtors, § 802. 

Chapter 2. Motions and Orders, § 808. 

Chapter 3. Computation of Time, § 813. 

Chapter 4. Miscellaneous Provisions, § 815. 



CHAPTER 1 
Proceedings Against Joint Debtors 

802. .Joint Contractors may be Summoned 804. Affidavit of Amount Due. 
after Judgment. 805. Defense by Party Summoned. 

803. Form of Summons. 806-7. Pleadings. 

§ 802. Parties Not Summoned in Action on Joint Contract May Be Sum- 
moned After Judgment. — When a judgment shall be recovered against one or 
more of several persons jointly indebted upon a contract, by proceeding as pro- 
vided in Section 429, those who were not originally summoned to answer the 
complaint may be summoned to show cause why they should not be bound by 
the judgment, in the same manner as if they had been originally summoned. 

Civ. P. '22, § 677 ; Civ. P. '12, § 415 ; Civ. P. '02, § 377 ; 1870, XIV, § 392. 

§ 803. Form of Summons. — The summons provided in the last Section shall 
be subscribed by the judgm.ent creditor, his representative or attorney, shall 
describe the judgment, and require the person summoned to show cause, with- 
in twenty days after the service of the summons ; and shall be served in like 
manner as the original summons. 

Civ. P. '22, § 678 ; Civ. P. '12, § 416 ; Civ. P. '02, § 378 ; 1870, XIV, § 394. 

§ 804. Summons to Be Accompanied by Affidavit of Amount Due. — The 

summons shall be accompanied by an affidavit of the person subscribing it, that 
the judgment has not been satisfied, to his knowledge or information and be- 
lief, and shall specify the amount due thereon. 

Civ. P. '22, § 679 ; Civ. P. '12, § 417 ; Civ. P. '02, § 379 ; 1870, XIV, § 395. 

§ 805. Party Summoned May Answer and Defend. — Upon such summons 
any party summoned may answer within the time specified therein, denying the 
judgment, or setting up any defense thereto, which may have arisen subsequent- 



2i9 Code of Civil Procedure § 806 

ly to such judgment ; and, in addition thereto, if the party be proceeded against 
according to Section 794, he may make any defense which he might have made 
to the action if the summons had been served on him at the time when the same 
was originally commenced and such defense had been then interposed to such 
action. 

Civ. P. "22, § 680 ; Civ. P. '12, § 418 ; Civ. P. '02, § 380 ; 1870, XIV, § 396. 

§ 806. Subsequent Pleadings and Proceedings the Same as in an Action. — 

The party issuing the sum^mons may demur or reply to the answer, and the 
party summoned may demur to the reply ; and the issues may be tried and 
judgment may be given in the same manner as in an action, and enforced by 
execution; or the application of the property charged to the payment of the 
judgment may be compelled by attachment, if necessary. 

Civ. P. '22, § 681 ; Civ. P. '12, § 419 ; Civ. P. '02, § 381 ; 1870, XIV, § 397. 

§ 807. Answer and Reply to Be Verified as in an Action. — The answer and 
reply shall be verified in the like cases and manner, and be subject to the 
same rules as the answer and reply in an action. 

Civ. P. '22, § 682 ; Civ. P. '12, § 420 ; Civ. P. '02, § 382 ; 1870, XIV, 398. 



CHAPTER 2 
Motions and Orders 

808. Definition of Order. 810. Notice of Motion. 

809. Definition of Motion. 811. Transfer of Hearing to Another Judge. 

812. Enlarging Time for Proceeding. 

§ 808. Definition of Order. — Every direction of a Court or Judge, made or 
entered in writing, and not included in a judgment, is denominated an order. 
Civ. P. '22, § 753 ; Civ. P. '12, § 439 ; Civ. P. '02, § 401 ; 1870, XIV, § 416. 
§ 809. Definition of Motion. — (1) An application for an order is a motion. 

(2) Motions — How and When Made. — Motions may be made to a Judge or 
Justice out of Court, except for a new trial on the merits. 

(3) Orders Out of Court Without Notice. — Orders made out of Court, 
without notice, may be made by the Judge of the Court, in any part of the 
State. 

(4) Motions — Where Made. — Motions upon notice must be made within the 
Circuit in which the action is triable, or, in the absence or inability of the Judge 
of the Circuit, may be made before the resident or presiding Judge of a Circuit 
adjoining that in which it is triable. 

(5) Preference of Motions. — A motion to modify or vacate a provisional 
remedy, and an appeal from an order allowing a provisional remedy, shall have 
preference over all other motions. 

(6) Stay of Proceedings. — No order to stay proceedings for a longer time 
than twenty days shall be granted by a Judge out of Court, except upon previous 
notice to the adverse party, of at least four days, unless the Circuit Judge pre- 
scribe a shorter period. 

(7) Appointment of Referee to Take Requisite Affidavits. — When any 
party intends to make or oppose a motion in any court of record, and it shall be 
necessary for him to have the affidavit of any person who shall have refused to 
make the same, such Court, or a Judge thereof, may, by order, appoint a referee 
to take the affidavit or deposition of such person. Such person may be subpoe- 
naed and compelled to attend and make an affidavit before such referee, the same 



§ 810 Code of Civil Procedure 220 

as before a referee to whom it is referred to try an issue. And the fees of such 
referee for such service shall be three dollars per day. 

(8) Decision on Motion. — Whenever a motion shall be made in any cause 
or proceeding in any of the Courts in this State to obtain an injunction order, 
order of arrest, or warrant of attachment, granted in any such case or proceed- 
ing, it shall be the duty of the Judge, Magistrate, or other officer before whom 
such motion is made, to render and make known his decision on such motion 
within twenty days after the day upon which such motion shall or may be 
submitted to him for his decision. 

Civ. P. '22, § 754 ; Civ. P. '12, § 440 ; Civ. P. '02, § 402 ; 1870, XIV, § 417 ; 1899, XXIII, 39. 

§ 810. Notice of Motion. — When a notice of a motion is necessary, it must 
be served four days before the time appointed for the hearing; but the Court 
or Judge, may, by an order to show cause, prescribe a shorter time. 

Civ. P. '22, § 755 ; Civ. P. '12, § 441 ; Civ. P. '02, § 403 ; 1870, XIV, § 418. 

§ 811. Absence, Etc., of Jud^e at Chambers, Motion May Be Transferred 
to Another Judge. — When notice of a motion is given, or an order to show 
cause is returnable before a Judge out of Court, and at the time fixed for the 
motion he is absent or unable to hear it, the same may be transferred, by his 
order, to some other Judge, before whom the motion, in case of his absence or 
inability, might originally have been made. 

Civ. P. '22, § 756 ; Civ. P. '12, § 442 ; Civ. P. '02, § 404 ; 1870, XIV, § 419. 

§ 812. Enlarging Time for Proceeding in an Action. — The time within 
which any proceeding in an action must be had, after its commencement, except 
the time within which an appeal must be taken, may be enlarged, upon an af- 
fidavit showing grounds thereof, by a Judge of the Circuit Court. The affidavit, 
or a copy thereof, must be served with a copy of the order, or the order may. be 
disregarded. 

Civ. P. '22, § 757; Civ. P. '12, § 443; Civ. P. '02, § 405; 1870,. XIV, § 420. 



CHAPTER 3 
Computation of Time 

813. General Rule. 814. Time for Publication of Notices. 

§ 813. Time — How Computed. — The time within which an act is to be don*e, 
as herein provided, shall be computed by excluding the first day and including 
the last. If the last day be Sunday, it shall be excluded. 

Civ. P. '22, § 759 ; Civ. P. '12, § 445 ; Civ. P. '02, § 407 ; 1870, XIV, § 422. 

§ 814. Time for Publication of Notices — How Computed. — The time for 
publication of legal notices shall be computed so as to exclude the first day of 
publication, and include the day on which the act or event, of which notice 
is given, is to happen, or which completes the full period required for publica- 
tion. 

Civ. P. '22, § 773 ; Civ. P. '12, § 459 ; Civ. P. '02, § 421 ; 1870, XIV, § 440. 



CHAPTER 4 
Miscellaneous Provisions 

815. When Copy of Paper may be Used. 816. Where Undertaking Filed. 

817. Defectively Entitled Affidavits. 



221 Code of Civil Procedure § 815 

§ 815. Papers Lost or Withheld — How Supplied. — If an original pleading 
or paper be lost or withheld by any person, the Court may authorize a copy 
thereof to be filed and used instead of the original. 

Civ. P. '22, ^ 771 ; Civ. P. '12, § 457 ; Civ. P. '02, § 419 ; 1870, XIV, § 437. 

§ 816. Where Undertakings to Be Filed. — The various undertakings re- 
quired to be given by this Code of Procedure must be filed with the Clerk of 
the Court, unless the Court expressly provides for a different disposition thereof, 
except that the undertakings provided for by the Chapter on the claim and 
delivery of personal property, shall, after the justification of the sureties, be 
delivered by the Sheriifs to the parties, respectively, for whose benefit they are 
taken. 

Civ. P. '22, § 772 ; Civ. P. '12, § 458 ; Civ. P. '02, § 420 ; 1870, XIV, § 438. 

§ 817. Affidavits Defectively Entitled Valid. — It shall not be necessary to 
entitle an affidavit in an action ; but an affidavit made without a title, or with 
a defective title, shall be as valid and effectual, for every purpose, as if it were 
duly entitled, if it intelligibly refer to the action or proceeding in which it is 
made. 

Civ. P. '22, § 758 ; Civ. P. '12, § 444 ; Civ. P. '02, § 406 ; 1870, XIV, § 421. 



TITLE 14 

Actions in Particular Cases and Extraordinary Remedies 

Chai^ter 1. Actions Against Foreign Corporations, § 818. 

Chapter 2. Substitutes for Scire Facias, Quo Warranto, and Informations 

in the Nature of Quo Warranto, § 819. 
Chapter 3. The Writ of Mandamus, § 839. 



CHAPTER 1 

Actions Against Foreign Corporations 

§ 818. Where and by Whom Action Brought. — An action against a eor- 
poratioji created by or under the laws of any other State, government, or coun- 
try may be brought in the Circuit Court. 

(1) B}^ any resident of this State, for any cause of action. 

(2) By a ])laintiff not a resident of this State, when the cause of action shall 
have arisen, or the subject of the action shall be situated, within this State. 

Civ. P. '22, § 774 ; Civ. P. '12, § 461 ; Civ. P. '02, § 423 ; 1870, XIV, § 442. 



CHAPTER 2 

Substitutes for Scire Facias, Quo Warranto, and Informations in the Nature 

of Quo Warranto 

819. Scire Facias and Quo Warranto Abol- 830. Damages. 

islied. 831. One Action Against Several Claiming 
820-2. Action to Annul Corporate Charter. Office. 

823. When Attorney General may Sue in 832. Penalty for Usurping Office or Fran- 
State's Name. chise. 

824. Action to Vacate Letters Patent. 883. Judgment of Forfeiture Against Cor- 

825. When Private Person Joined as Co- poration. 

Plaintiff. 834. Costs Against Corporation. 

826-7. Usurpation of Office. 835. Appointment of Receiver. 

828. Assumption of Office. 836-7. Filing Judgment Roll. 

829. Defendant Refusing to Deliver Books 838. Forfeiture of Property to State, 
and Papers. 



§ 819 Code of Civil Procedure 222 

§ 819. Scire Facias and Quo Warranto Abolished, and this Chapter Sub- 
stituted. — The writ of scire facias, the writ of quo warranto, and proceedings 
by information in the nature of quo warranto, are abolished; and the remedies 
heretofore obtainable in those forms may be obtained by civil actions under 
the provisions of this Chapter. But any proceeding heretofore commenced, or 
judgment rendered, or right acquired, shall not be affected by such abolition. 

Civ. P. '22, § 775 ; Civ. P. '12, § 462 ; Civ. P. '02, § 424 ; 1870, XIV, § 443. 

§ 820. Action, by Direction of Legislature, by Attorney General, to Vacate 
a Charter. — An action may be brought by the Attorney General in the name 
of the State, whenever the Legislature shall so direct, against a corporation, for 
the purpose of vacating or annulling the Act of incorporation, or an Act renew- 
ing its corporate existence, on the ground that such Act or renewal was procured 
upon some fraudulent suggestion or concealment of a material fact, by the per- 
sons incoriiorated, or by some of them, or with their knowledge and consent. 

Civ. P. '22, § 776 ; Civ. P. '12, § 463 ; Civ. P. '02, § 425 ; 1870, XIV, § 444. 

§ 821. Action to Annul Corporation by Attorney General, by Leave of Su- 
preme Court. — An action may be brought by the Attorney General in the name 
of the State, on leave granted by the Supreme Court or a Justice thereof, or a 
Circuit Judge, for the purpose of vacating the charter or annulling the existence 
of a corporation, other than municipal, whenever such corporation shall : 

(1) Offend against any of the provisions of this Code of Procedure, or the 
Acts creating, altering, or renewing such corporation ; or, 

(2) Violate the provisions of any law by which such corporation shall have 
forfeited its charter by abuse of its powers; or, 

(3) Whenever it shall have forfeited its privileges or franchises by failure 
to exercise its powers; or, 

(4) Whenever it shall have done or omitted any act which amounts to a 
surrender of its corporate rights, privileges, and franchises ; or, 

(5) Whenever it shall exercise a franchise or privilege not conferred upon it 
by law. 

And it shall be the duty of the Attorney General, whenever he shall have rea- 
son to believe that any of these acts or omissions can be established by proof, 
to apply for leave, and, upon leave granted, to bring the action, in every case 
of public interest, and, also, in every other case in which satisfactory security 
shall be given, to indemnify the State against the costs and expenses to be in- 
curred thereby. 

Civ. P. '22, § 777 ; Civ. P. '12, § 464 ; Civ. P. '02, § 426 ; 1870, XIV, § 445. 

§ 822. Leave to Sue — How Obtained. — Leave to bring the action may be 
granted upon the application of the Attorney General ; and the Court or Judge 
may, at discretion, direct notice of such application to be given to the cor- 
poration or to its officers, previous to granting such leave, and may hear the 
corporation in opposition thereto. 

Civ. P. '22, § 778 ; Civ. P. '12, § 465 ; Civ. P. '02, § 427 ; 1870, XIV, 446. 

§ 823. Action Upon Information or Complaint of Court. — An action may be 
brought by the Attorney General in the name of the State, upon his own infor- 
mation, or upon the complaint of any private party, or by a private party in- 
terested, on leave granted by a Circuit Judge, against the parties offending, in 
the following cases : 

(1 ) When any person shall usurp, intrude into, or unlawfully hold or exercise 
any public office, civil or military, or any franchise within this State, or any 
office in a corporation created by the authority of this State; or, 



223 Code of Civil Procedure § 824 

(2) When any public officer, civil or military, shall have done or suffered an 
act which, by the provisions of law, shall make a forfeiture of his office ; or, 

(3) When any association or number of persons shall act within this State 
as a corporation, without being duly incorporated. 

Civ. P. '22, § 779 ; Civ. P. '12, § 466 ; Civ. P. '02, § 428 ; 1870, XIV, § 447. 

§ 824. Action — When and How Brought to Vacate Letters Patent. — An 

action may be brought by the Attorney General, in the name of the State, for 
the purpose of vacating or annulling the letters patent granted by the people 
of this State in the following cases : 

(1) When he shall have reason to believe that such letters patent were ob- 
tained by means of some fradulent suggestion or concealment of a material 
fact, made by the person to whom the same were issued or made, or with his 
consent or knowledge ; or, 

(2) When he shall have reason to believe that such letters patent were issued 
through mistake, or in ignorance of material fact; or, 

(3) When he shall have reason to believe that the patentee, or those claiming 
under him, have done or committed an act in violation of the terms and condi- 
tions on which the letters patent were granted, or have, by any other means, 
forfeited the interest acquired under the same. 

Civ. P. '22, § 780 ; Civ. P. '12, § 467 ; Civ. P. '02, § 429 ; 1870, XIV, § 448, 

§ 825. Relator— When to Be Joined as Plaintiff.— When an action shall be 
brought by the Attorney General by virtue of this Chapter, on the complaint 
of any private party, or by a person having an interest in the question, the 
name of such person shall be joined with the State as plaintiff; and, in every 
case, the Attorney General, or Circuit Judge, as the case may be, may require as 
a condition precedent to bringing such action, that satisfactory security shall 
be given to indemnify the State against the costs and expenses to be incurred 
thereby ; and in every case brought by the Attorney General where such security 
is given, the measure of compensation to be paid by such person to the Attorney 
General shall be left to the agreement, express or implied, of the parties. 

Civ. P. '22, § 781 ; Civ. P. '12, § 468 ; Civ. P. '02, § 430 ; 1870, XIV, § 449. 

§ 826. Complaint and Arrest of Defendant in Action for Usurping OflSce. 

When such an action shall be brought against a person for usurping an office, 
the Attorney General, or private party bringing the same, in addition to the 
statement of the cause of action, may also set forth in the complaint the name 
of the person rightfully entitled to the office, with a statement of his right 
thereto; and in such case, upon proof by affidavit that the defendant has re- 
ceived fees or emoluments belonging to the office, and by means of his usurpa- 
tion thereof, an order may be granted by a Judge of the Circuit or Justice 
of the Supreme Court for the arrest of such defendant, and holding him to bail ; 
and thereupon he shall be arrested and held to bail in the manner, and with the 
same effect, and subject to the same rights and liabilities, as in other civil actions 
where the defendant is subject to arrest. 

Civ. P. '22, § 782 ; Civ. P. '12, § 469 ; Civ. P. '02, § 431 ; 1870, XIV, § 450. 

§ 827. Judgment in Such Actions.— In every case, judgment shall be ren- 
dered upon the right of the defendant, and also upon the right of the party 
so alleged to be entitled, or only upon the right of the defendant as justice 
shall require. 

Civ. P. '22, § 783 ; Civ. P. '12, § 470 ; Civ. P. '02, § 432 ; 1870, XIV, § 451. 



§ 828 Code of Civil Procedure 224 

§ 828. Assumption of Office, Etc., by Relator, When Judgment is in His 
Favor. — If the judgment be rendered upon the right of the person so alleged 
to be entitled, and the same be in favor of such person, he shall be entitled after 
taking the oaths of office, and executing such official bond as may be required 
by law, to take upon himself the execution of the office ; and it shall be his duty, 
immediately thereafter, to demand of the defendant in the action all the books 
and papers in his custody, or within his power, belonging to the office from 
which he shall have been excluded. 

Civ. P. '22, § 784 ; Civ. P. '12, § 471 ; Civ. P. '02, § 433 ; 1870, XIV, § 452. 

§ 829. Proceedings Against Defendant on His Refusal to Deliver Books or 
Papers. — If the defendant shall refuse or neglect to deliver over such books 
or papers, pursuant to the demand, he shall be guilty of a misdemeanor, and 
the following proceedings shall be had, to compel delivery of such books or 
papers : 

(1) Whenever any person shall be removed from office, or the term for which 
he shall have been elected or appointed shall expire, he shall, or demand, deliver 
over to his successor all the books and papers in his custody as such officer, or 
in any way appertaining to his office. Every person violating this provision shall 
be deemed guilty of a misdemeanor. 

(2) If any person shall refuse or neglect to deliver over to his successor any 
books or papers, as required in the preceding Section, such successor may make 
complaint thereof to any Judge of the Circuit Court, or Justice of the Supreme 
Court, where the person so refusing shall reside ; and if such officer be satisfied 
by the oath of the complainant, and such testimony as shall be offered, that 
any such books or papers are withheld, he shall grant an order directing the 
person so refusing to show cause before him, within some short reasonable time, 
why he should not be compelled to deliver the same. 

(3) At the time so appointed, or at any other time to which the matter may 
be adjourned, upon due proof being made of the service of the said order, such 
officer shall proceed to inquire into the circumstances. If the person charged 
with withholding such books or papers shall make affidavit before such officer 
that he has truly delivered over to his successor all such books and papers in 
his custody, or appertaining to his office, within his knowledge, all further pro- 
ceedings before such officer shall cease, and the person complained against shall 
be discharged. 

(4) If the person complained against shall not make such oath, and it shall 
appear that any such books or papers are withheld, the officer before whom such 
proceedings shall be had shall, by warrant, commit the person so withholding 
to the jail of the county, there to remain until he shall deliver such books and 
papers or be otherwise discharged according to law. 

(5) In the case stated in the last Section, if required by the complainant, 
such officer shall also issue his warrant, directed to any Sheriff or Constable, 
commanding him in the day time to search such places as shall be designated 
in such warrant for such books and papers as belong to the officer so removed, 
or whose term of office expired, in his official capacity, and which appertained 
to such office, and seize and bring them before the officer issuing the warrant. 

(6) Upon any books or papers being brought before such officer, by virtue 
of such warrant, he shall inquire and examine whether the same appertained to 
the office from which the person so refusing to deliver was removed, or of which 
the term expired, and he shall cause the same to be delivered to the complainant. 



225 Code of Civil Procedure § 830 

(7) If any person appointed or elected to any office shall die, or his office 
shall in any way become vacant, and any books or papers belonging or apper- 
taining to such office shall come to the hands of any person, the successor to 
such office may, in like manner as hereinbefore prescribed, demand such books 
or papers from the person having the same in his possession ; and on the same 
being withheld an order may be obtained, and the person charged may, in like 
manner, make oath of the delivery of all such books and papers that ever came 
to his possession; and in case of omission to make such oath, and to deliver up 
the books and papers so demanded, such person may be committed to jail, and 
a search warrant may be issued, and the property seized by virtue thereof may 
be delivered to the complainant, as hereinbefore prescribed. 

Civ. P. '22, § 785 ; Civ. P. '12, § 472 ; Civ. P. '02, § 434 ; 1870, XIV, § 453. 

§ 830. Damages — How Recovered. — If judgment be rendered upon the 
right of the person so alleged to be entitled, in favor of such person, he may 
recover, by action, the damages which he shall have sustained by reason of the 
usurpation by the defendant of the office from which such defendant has been 
excluded. 

Civ. P. '22 § 786 ; Civ. P. '12, § 473 ; Civ. P. '02, § 435 ; 1870, XIV, § 454. 

§ 831. One Action Against Several Persons Claiming Office and Franchise. — 

Where several persons claim to be entitled to the same office or franchise, one 
action may be brought against all such persons, in order to try their respective 
rights to such office or franchise. 

Civ. P. '22, § 787 ; Civ. P. '12, § 474 ; Civ. P. '02, § 436 ; 1870, XIV, § 455. 

§ 832. Penalty for Usurping Office or Franchise — How Awarded. — When 
a defendant, whether a natural person or corporation, against whom such action 
shall have been brought, shall be adjudged guilty of usurping or intruding into, 
or unlawfully holding or exercising, any office, franchise, or privilege, judgment 
shall be rendered that such defendant be excluded from such office, franchise, or 
privilege, and also that the plaintiff recover costs against such defendant. The 
Court may also, in its discretion, fine such defendant a sum not exceeding two 
thousand dollars, which fine, when collected, shall be paid into the Treasury 
of the State. 

Civ. P. '22, § 788 ; Civ. P. '12, § 475 ; Civ. P. '02, § 437 ; 1870, XIV, § 456. 

§ 833. Judgment of Forfeiture Against Corporation. — If it shall be adjudged 
that a corporation against which an action shall have been brought pursuant 
to this Chapter, has, by neglect, abuse, or surrender, forfeited its corporate 
rights, privileges, and franchises, judgment shall be rendered that the corpora- 
tion be excluded from such corporate rights, privileges, and franchises, and that 
the corporation be dissolved. 

Civ. P. '22, § 789 ; Civ. P. '12, § 476 ; Civ. P. '02, § 438 ; 1870, XIV, § 457. 

§ 834. Costs Against Corporation, or Persons Claiming to Be Such — How 
Collected. — If judgment be rendered in such action against a corporation, or 
against persons claiming to be a corporation, the Court may cause the costs 
herein to be collected by execution against the persons claiming to be a cor- 
poration, or by attachment or process against the directors or other officers of 
such corporation. 

Civ. P. '22, § 790 ; Civ. P. '12, § 477 ; Civ. P. '02, § 439 ; 1870, XIV, § 458. 

§ 835. Restraining Corporation, and Appointment of Receiver. — When such 
judgment shall be rendered against a corporation, the Court shall have power 
to restrain the corporation, to appoint a receiver of its property, and to take an 



§ 836 Code of Civil Procedure 226 

account and make distribution thereof among its creditors; and it shall be the 
duty of the Attorney General, immediately after the rendition of such judgment, 
to institute proceedings for that purpose. 

Civ. P. '22, § 791 ; Civ. P. '12, § 478 ; Civ. P. '02, § 440 ; 1870, XIV, § 459. 

§ 836. Copy of Judgment Roll Against Corporation — Where to Be Filed. — 

Upon the rendition of such judgment against a corporation, or for the vacating 
or annulling of letters patent, it shall be the duty of the Attorney General 
to cause a copy of the judgment roll to be forthwith filed in the office of the 
Secretary of State. 

Civ. P. '22, § 792 ; Civ. P. '12, § 479 ; Civ. P. '02, § 441 ; 1870, XIV, § 460. 

§ 837. Entry of Judgment Relating to Letters Patent. — Such Secretary 
shall thereupon, if the record relates to letters patent, make an entry in the 
records of the office of the Secretary of State, of the substance and effect of such 
judgment, and of the time when the record thereof was docketed; and the real 
property granted by such letters patent may thereafter be disposed of in the 
same manner as if such letters patent had never been issued. 

Civ. P. '22, § 793 ; Civ. P. '12, § 480 ; Civ. P. '02, § 442 ; 1870, XIV, § 461. 

§ 838. Action for Forfeiture of Property to State. — Whenever, by the pro- 
visions of law, any property, real or personal, shall be forfeited to the State, 
or to any officer for its use, an action for the recovery of such property, alleg- 
ing the ground of the forfeiture, may be brought by the proper officer in the 
Circuit Court. 

Civ. P. '22, § 794 ; Civ. P. '12, § 481 ; Civ. P. '02, § 443 ; 1870, XIV, § 462. 



CHAPTER 3 

The Writ of Mandamus 

839. Returns to First Writ. 842. No Liability in other Action if Dam- 

840. Pleading. ages Recovered. 

841. Trial, Damages and Costs. 

§ 839. Returns to First Writ — Court May Allow Time. — Where any writ of 

mandamus shall issue out of any of the Courts of this State, such person or 

persons as are required to make a return to such writ of mandamus shall make 

his or their return to the first writ of mandamus : Provided, That it shall and 

may be lawful to and for the said Courts, or the Judges thereof, to allow such 

person or persons, respectively, to whom any writ of mandamus shall be directed, 

such convenient time to make a return, plead, reply, rejoin, or demur, as to them 

shall seem just and reasonable. 

Civ. P. "22, § 795; Civ. '12, § 4099; Civ. '02, § 2998; G. S. 2342; R. S. 2457; 9 Ann. c. 20; 
1712, II, 568, 570. 

§ 840. When Return is Made, the Prosecutor May Plead, Etc. — ^As often 
as in any of the cases aforesaid any writ of mandamus shall issue out of any of 
the said Courts, and a return shall be made thereto, it shall and may be lawful 
to and for the person or persons suing or prosecuting such writ of mandamus 
to plead to or traverse all or any of the material facts contained within the said 
return; to which the person or persons making such return shall reply, take issue, 
or demur ; and such further proceedings, and in such manner, shall be had there- 
in as may be necessary for the determination thereof. 

Civ. P. '22, § 796 ; Civ. '12, § 4100 ; Civ. '02, § 2999 ; G. S. 2343 ; R. S. 2458 ; 1712, II, 569. 



227 Code of Civil Procedure § 841 

§ 841. Place of Trial, Damages and Costs. — If any issue shall be joined on 
such proceedings, the person or persons suing such writ shall and may try the 
same in such place as a civil action should or miglit have been tried ; and in case 
a verdict shall be found for the person or persons suing such writ, or judgment 
given for him or them upon a demurrer, or by default, or for want of a rep- 
lication or other pleading, he or they shall recover his or their damages and 
costs in such manner as he or they might have done in a civil action; and a 
peremptory writ of mandamus shall be granted without delay for him or them 
for whom judgment shall be given, as might have been if such return had been 
adjudged insufficient; and in case judgment shall be given for the person or 
persons making such return to such writ, he or they shall recover his or their 
costs of suit. 

Civ. P. '22, § 797 ; Civ. '12, § 4101 ; Civ. '02, § 3000 ; G. S. 2344 ; R. S. 2459 ; 1712, II, 569. 

§ 842. Not Liable in Other Actions, if Damages are recovered, Etc. — If any 

damages shall be recovered by virtue of this Chapter against any such person 
or persons making return to such writ, as aforesaid, he or they shall not be liable 
to be sued in any other action or suit, for making such return. 
Civ. P. '22, § 798 ; Civ. '12, § 4102 ; Civ. '02, § 3001 ; G. S. 2345 ; R. S. 2460. 



TITLE 15 

Proceedings for Relief of Persons Arrested in Civil Actions 

843. Partition of Person Arrested. 850-2. Jury Trial in Case of Fraud. 

844. Summoning of Creditors. 853. Exceptions to Clerk's Rulings. 

845. Examination and Oath of Prisoner. 854. Clerk's Fees. 

846. Exemptions. 855. Sheriff's Fees. 

847. Prisoner Discharged on Making As- 856. Appeal. 

signments. S57-S. Examination by Creditors. 

848. Prisoner Remanded for Refusal to 859. Submission of Issues to Jury. 
Assign. 860. No Discharge Until Property Deliv- 

849. Penalty for False Schedules. ered. 

861. Expenses of Imprisonment. 

§ 843. Persons Under Arrest Wishing to Surrender Property, to Petition 
Courts, Etc. — Any person arrested on mesne or final process in any civil action, 
as provided by Chapter 1, Title 7, of this Code of Procedure, being unable or 
unwilling to give the bail therein provided, may petition the Court of Common 
Pleas of the county wherein he is confined, certifying the causes of his arrest, 
together with an account of his real and personal estate, with the dates of the 
securities wherein any part of it consists, and the deeds, notes, or vouchers 
relating thereto, and the names of the witnesses to the same, as far as his knowl- 
edge extends therein. 

Civ. P. '22, § 799 ; Civ. '12, § 4176 ; Civ. '02, § 3072 ; G. S. 2405 ; R. S. 2524 ; 1759, IV, 
86 ; 1788, V, 79 ; Const., Art. I, § 20. 

§ 844. Creditors to Be Summoned by Public Notice, Etc.— Upon such pe- 
tition, the Clerk is hereby required, by order or rule, to cause the petitioner 
to be brought before the Court, and also the creditors at whose suit such person 
shall stand charged, as well as all other creditors to whom he shall be indebted, 
to be summoned by public notice, to be given three weeks at least in some news- 
paper of the county wherein the debtor is confined, and if there be no news- 
paper published in such county, then in some newspaper of general circulation 
therein, personally, or by their attorney, to appear before him, at a day for 
that purpose appointed, at or after the expiration of the said three weeks. 

Civ. P. '22. § 800 ; Civ. '12, § 4177 ; Civ. '02, § 3073 ; G. S. 2406 ; R. S. 2525 ; 1759, IV, 87. 



§ 845 Code of Civil Procedure 228 

§ 845. Clerk to Examine as to Discharge of Prisoner — Oath of Petitioner. — 

Upon the day of such appearance, if any of the creditors so summoned shall 
neglect or refuse to appear, upon affidavit made of the service of such rule or 
order, in manner aforesaid, the Clerk shaU, in a summary way, examine into 
the matter of the said petition, and hear what shall be alleged for or against 
the discharge of the said petitioner ; and, upon such examination, the Clerk 
may, and is hereby required to administer or tender to the petitioner an oath 
in the following words : 

"I, (A B), do solemnly swear that the account by me delivered into this 
Honorable Court, with my petition, doth contain a true and full account of 
all my real and personal estate, debts, credits, and effects whatsoever, without 
exception, which I, or any person in trust for me, have, or at the time of my 
said petition had, or am, or was, in any respect, entitled unto, in possession, re- 
mainder, or reversion ; and that I have not at any time since my being sued, ar- 
rested, or imprisoned, or before, directly or indirectly, sold, leased, assigned, or 
otherwise disposed of, or made over, in trust for myself or otherwise, other than 
is mentioned in such account, any part of my lands, estate, goods, stock, money, 
debts, or other real or personal estate, whereby to have or expect any benefit or 
profit to myself, or to defraud any of my creditors to whom I am indebted ; and 
that I will, to the utmost of my power, endeavor to collect all and singular the 
title deeds to my lands, together with the remainder of my goods and effects con- 
tained in my said account, and the vouchers relating to or concerning the same, 
wheresoever, or in whosoever hands they may be within this State, and will sur- 
render the same to my assignee or assignees as soon as possible after my dis- 
charge. So help me God." 

Civ. P. '22, § 801 ; Civ. '12, § 4178 ; Civ. '02, § 3074 ; G. S. 2407 ; R. S. 2526 ; 1759, IV, 87. 

§ 846. Petitioner Allowed Certain Property, Etc., and Rest Assigned, Etc. 
— Homestead. — In case the prisoner shall take the said oath, and upon examina- 
tion the Clerk shall be satisfied with the truth thereof, he shall order the lands, 
goods, and effects contained in the said accounts, or so much of them as may be 
sufficient to satisfy the debts wherewith such petitioner shall be charged, and 
the fees of the keeper of the jail where he shall be in custody, together with the 
costs of suit which shall be incurred on the suit or prosecution commenced against 
him, and all other costs and fees which shall arise or become due upon prose- 
cuting and obtaining his discharge, by a short indorsement on the back of his 
petition, signed by the petitioner, to be assigned to some suitable person, to be 
selected by the Clerk, as assignee for the benefit of the plaintiff and such credit- 
ors as may appear or establish claims against the debtor : Provided, however, 
That if the petitioner be the head of a family, there shall be reserved to him, 
out of his real and personal property, a homestead, and such articles as are 
exempt from attachment, levy and sale under the provisions of the Constitution 
and laws of this State. 

Civ. P. '22, § 802 ; Civ. '12, § 4179 ; Civ. '02, § 3075 ; G. S. 2408 ; R. S. 2527 ; 1759, IV, 87 ; 
Const., Art. II, § 32. 

§ 847. On Making Assignments, Etc., Prisoner to Be Discharged. — The pe- 
titioner, upon executing such assignment (and when he shall have delivered 
unto the hands of the assignee or assignees all and singular his title-deeds, 
vouchers, and effects contained in his said account, so far as in his power so 
to do), shall be forthwith discharged, by order, from such suit or suits, and shall 
also thenceforth be acquitted and discharged of, from and against all such other 



229 Code, of Civil Procedure § 848 

of his creditors as shall have appeared or established their demands before the 
Court, or assignee, for all debts, contracts, and demands whatsoever. 

Civ. P. '22, § 803 ; Civ. '12, § 4180 ; Civ. '02, § 3076 ; G. S. 2409 ; R. S. 2528 ; 1759, IV, 88. 

§ 848. Prisoner to Be Remanded for Refusal to Assign. — In case any such 
debtor shall neglect or refuse so to do within the time aforesaid, it shall and 
may be lawful for the Judge of said Court, upon application upon oath, of the 
assignee or assignees, again to remand the said debtor to prison there to remain, 
unless good cause shall be shown by him or them to the contrary, until he shall 
fully comply with the terms of Section (3) of this Chapter. 

Civ. P. '22, § 804 ; Civ. '12, § 4181 ; Civ. '02, § 3077 ; G. S. 2410 ; R. S. 2529 ; 1759, IV, 88. 

§ 849. Penalty for False Schedules. — Any person who shall deliver in a 

false schedule of his effects shall sutfer the penalties of wilful perjury, shall 

be liable to be arrested again for the action on which he was discharged, and 

shall forever be disabled to take any benefit from this Chapter. 

Civ. P. '22, § 805 ; Civ. '12, § 4182 ; Civ. '02, § 3078 ; G. S. 2411 ; R. S. 2530 ; 1759, IV, 93 : 
1788, V, 79. 

§ 850. Manner of Summoning Jury in Cases of Alleged Fraud. — AVhenever 
a debtor in custody under the provisions of this Chapter shall be accused by the 
plaintiff of fraud, or of having given an undue preference to one creditor to 
the prejudice of another, or of having made a false return, it shall be law^ful for 
the Clerk of the Circuit Court, who shall hear the prisoner's application, to 
place the names of twenty-four persons qualified as jurors in a box, and from 
them draw eighteen, and to direct the Sheriff of the county to summon the said 
eighteen whose names shall be thus drawn to attend at the place where the pris- 
oner is confined, and at such time as the said Clerk shall appoint; and from 
them shall be drawn twelve in the same manner, who shall be empaneled to 
try the facts required by this Chapter. 

Civ. P. '22, § 806 ; Civ. '12, § 4183 ; Civ. '02, § 3079 ; G. S. 2412 ; R. S. 2531 ; 1833, VI, 491. 

§ 851. Filling Vacancies in Panel. — If, from the eighteen persons so sum- 
moned, twelve cannot, from any cause, be empaneled, then the said Clerk is 
authorized to complete that number from the other freeholders originally selected. 

Civ. P. '22, § 807 ; Civ. '12, § 4184 ; Civ. '02, § 3080 ; G. S. 2413 ; R. S. 2532 ; 1833, VI, 491. 

§ 852. Liability for Non-Attendance of Jurors. — The freeholders so sum- 
moned shall be liable to the same objection, to be made by either party in the 
case, which may be made to jurors in the Court of Common Pleas, and shall 
be liable to the same fines for non-attendance without sufficient cause to which 
jurors are for non-attendance at the Courts, the said fines to be imposed by the 
Court of Common Pleas of the county; and it shall be the duty of the Clerk 
to return to the said Court the names of the freeholders who shall so neglect 
to attend, to be proceeded against as in the case of non-attending jurors. 

Civ. P. '22, § 808 ; Civ. '12, § 4185 ; Civ. '02, § 3081 ; G. S. 2414 ; R. S. 2533 ; 1833, VI, 492. 

§ 853. Issues on Exceptions to Clerk's Rulings to Be Summarily Heard by 
Judge. — In case exceptions be taken to any order or ruling of the Clerk while 
discharging the duties imposed by this Chapter, the issues therein may be sum- 
marily heard and tried by the Judge of the Circuit, or by any Circuit Judge then 
holding the Courts in such Circuit, or if there be no Judge within such Circuit, 
by any other Circuit Judge named in the notice for such hearing. 

Civ. P. '22, § 809 ; Civ. '12, § 4186 ; Civ. '02, § 3082 ; G. S. 2415 ; R. S. 2534. 

§ 854. Fees Allowed Clerk for Hearing Application. — The Clerk who may 
hear and determine the application of a debtor for the benefit of the provisions 



§ 855 Code of Civil Procedure 230 

of this Chapter, shall, if the same be unlitigated, be entitled to receive the sum 
of two dollars out of the property that may be assigned, as a compensation for 
his services ; and, whenever the same is litigated, the said Clerk shall be entitled 
to receive the sum of four dollars as a compensation for his services, out of the 
property of the debtor, if the final decision be against him ; but if it be his favor, 
then the said sum shall be paid by the plaintiff. 

Civ. P. '22, § 810; Civ. '12, § 4187; Civ. '02, § 3083; G. S. 2416; R. S. 2535; 1833, VI, 491. 

§ 855. Fees Allowed Sheriff. — The Sheriff shall receive the sum of five dol- 
lars as a compensation for summoning the said freeholders, to be paid out of 
the property of the debtor, if his application be refused, and, if granted to be 
paid by the plaintiff. 

Civ. P. '22, § 811 ; Civ. '12, § 4188 ; Civ. '02, § 3084 ; G. S. 2417 ; R. S. 2536 ; 1833, VI, 491. 

§ 856. Proceedings in Cases of Appeal. — If the verdict of the jury aforesaid 
be in favor of the debtor, and the plaintiff should appeal, the debtor shall be 
entitled to be discharged from confinement, on his giving bond and sufficient 
sureties to the plaintiff, to be forthcoming and to abide by the decision of the 
Supreme Court ; and if the said appeal shall be determined against the debtor, 
and he be not surrendered (which the surety is hereby authorized to do) before 
the first day of the Circuit Court next succeeding the determination of such 
appeal, then the Clerk of the Court shall, on the application of the plaintiff 
or his agent, forthwith issue an order on the said bond against the prisoner and 
his sureties, as in cases of estreated recognizances ; but in case the said prisoner 
should appear, or be surrendered, as aforesaid, then the said Clerk shall forth- 
with proceed with the case as provided in the preceding Sections. 

Civ. P. '22, § 812 ; Civ. '12, § 4189 ; Civ. '02, § 3085 ; G. S. 2418 ; R. S. 2537 ; 1833, VI, 491. 

§ 857. Creditors Allowed to Examine Applicants for Discharge — Penalty 
for Refusal to Answer. — It shall and may be lawful for the creditor or creditors 
of any person applying for the benefit of this Chapter, either in person or by 
attorney, to examine and cross-examine such applicant, on oath, in the presence 
of the Judge, or the Clerk of the Court, before whom he shall move for his dis- 
charge from imprisonment, touching the truth of his schedule, and touching the 
nature and extent of his property, rights and credits, liable to be assigned for 
the benefit of his creditors. And the refusal of any such applicant to answer, 
fully and directly, all or any proper questions put to him in the course of such 
examination, shall prevent his discharge, if otherwise entitled thereto, until 
he shall have fully answered the same. 

Civ. P. '22, § 813 ; Civ. '12, § 4190 ; Civ. '02, § 3086 ; G. S. 2419 ; R. S. 2538 ; 1836, VI, 556. 

§ 858. Debtor to Produce Books, Etc. — If, on such examination, it should 
appear that he has kept books, in relation to his trade, profession, or occupa- 
tion, he shall be required to produce the same, if in his possession or power ; and 
on failure to do so, he shall be deprived of his discharge until he shall produce 
the same. 

Civ. P. '22, § 814 ; Civ. '12, § 4191 ; Civ. '02, § 3087 ; G. S. 2420 ; R. S. 2539 ; 1836, VI, 556. 

§ 859. Submission of Issues to Jury, Etc. — Nothing contained in this Chap- 
ter shall be construed to deprive a Judge, sitting in open Court, of the power 
to submit to the jury already empaneled all issues arising under Section 850, in 
the same manner as is now practiced ; but in all cases where the plaintiff shall 
appeal, the defendant shall be entitled to his enlargement, pending the appeal, 
on the terms prescribed in Section 856. 

Civ. P. '22, § 815 ; Civ. '12, § 4192 ; Civ. '02, § 3088 ; G. S. 2421 ; R. S. 2540 ; 1833, VI, 493. 



231 Code of Civil Procedure § 860 

§ 860. No Discharge to Be Granted Until Delivery of Property to Assignee. 

— In all cases where a debtor applies for his discharge, the Judge, or Clerk of 
the Court, before whom the application shall be made, shall not discharge him 
from the confinement until the property contained in his schedule is produced 
and delivered to the assignee, if it be, or has been, within the power of the debtor 
to deliver the same since the time of his arrest. 

Civ. P. '22, § 816 ; Civ. '12, § 4193 ; Civ. '02, § 3089 ; G. S. 2422 ; R. S. 2541 ; 1833, VI, 493. 

§ 861. Expenses of Imprisonment Paid Weekly in Advance by Plaintiff, or 
Debtor Discharged. — Every debtor arrested and held in the custody of the 
Sheriff, under the provisions of this Chapter, shall be maintained in the com- 
mon jail at the expense and charge of the person causing the arrest. And if such 
charges are not paid to the keeper of the jail weekly, in advance, the Clerk or 
Judge may, upon proper evidence thereof, direct that such debtor be released 
from further custody. 

The charges for keeping such debtor in the common jail shall be the same 
as are allowed by law for dieting prisoners confined under process in the Court 
of Sessions ; and if the plaintiff recover judgment against the debtor, or an 
assignment of his effects be made as herein provided, such charges may be re- 
covered as disbursements in the action, or paid out of the estate assigned, be- 
fore any dividend is declared. 

Civ. P. '22. § 817 ; Civ. '12, § 4194 ; Civ. '02, § 3090 ; G. S. 2423 ; R. S. 2542. 



TITLE 16 
Remedies Relating to Real Property 

Chapter 1. Remedies against Guardians' Disseizors, Etc., § 862. 

Chapter 2. Forcible Entry and Detainer and Ejectment of Trespassers, § 877. 



CHAPTER 1 

Remedies Against Guardians, Disseizors, Etc. 

862. Guardian May Be Compelled to Pro- 870. Party Entitled to Bring Action to 
duce Minor. Quiet Title. 

863. Effect of Failure to Produce Minor. 871. Publication of Summons. 

864. Proceedings when Minor Out of State. 872. Service on Unknown Parties and Mi- 

865. Rights of Absent or Concealed Person nors. 
Preserved. 873. Costs. 

866. Proof that Person Sought is Alive. 874. Effect of Judgment. 

867. Guardians Holding Over. 875. Time Limit for Reopening Judgment. 

868. D^images. 876. Immaterial Procedural Errors. 

869. "Writ of Entry Against Heirs of Dis- 
seizor. 

§ 862. Remaindermen, Etc., May Compel Guardians, Etc., to Produce the 
Minor, Etc. — Any person who shall have any claim or demand in or to any re- 
mainder, reversion, or expectancy in or to any estate after the death of any 
person within age, married woman, or any other person whatsoever, upon af- 
fidavit made by the person so claiming such estate, of his or her title, and that 
he or she has cause to believe that such minor, married woman, or other person 
is dead, and that his or her death is concealed by such guardian, trustee, hus- 
band, or any other person, may, once a year, apply to the Court of Common 
Pleas for an order requiring such guardian, trustee, husband, or other person 
concealing, or suspected to conceal, the death of such person, at such time and 



§ 863 Code of Civil Procedure 232 

place as the said Court shall direct, on due service of such order, to produce 
and show to such persons and persons (not exceeding two) as shall, in such 
order, be named by the party prosecuting such order, such minor, married 
woman, or other person as aforesaid. 

Civ. P. '22, § 818; Civ. '12, § 4056; Civ. '02, § 2955; G. S. 2275; R. S. 2415; 6 Ann. c. 18; 
1712, II, 561. 

§ 863. If not Produced, Minor, Etc., Taken to Be Dead — Claimant Maji 
Enter on Land, Etc. — If the person proceeded against shall fail to produce such 
infant, married woman, or other person, according to the direction made, the 
Court may appoint Commissioners, before whom such infant, married woman, 
or other person, may be produced. If the said person cannot be produced, or 
there should be other satisfactory proof before the Commissioners of the death 
of such person, they shall make return of the fact on oath ; and such person 
sought shall be taken to be dead ; and any lawful claimant of any estate held by 
or for such person, shall be let into the possession of the same. 

Civ. P. '22, § 819 ; Civ. '12. § 4057 ; Civ. '02, § 2956 ; G. S. 2276 ; R. S. 2416 ; 6 Ann. c. 18 ; 
1712, II, 561. 

§ 864. Proceedings on AflEidavit That Minor, Etc., Is Beyond Limits of State. 

— Should it appear by affidavit that the person sought is, or lately was, at some 
certain place beyond the limits of this State, the Court may direct the Com- 
missioners to make personal search at the place or places named : Provided, 
That the person prosecuting such order shall provide the necessary expenses 
of such search. And upon return of the Commissioners, duly made and filed, of 
their failure to view such person alleged concealed or absent, or other satisfac- 
tory proof of death, such person shall be taken to be dead ; and any lawful 
claimant of any estate held by or for such person, shall be let into possession of 
the same. 

Civ. P. '22, § 820; Civ. '12, § 4058; Civ. '02, § 2957; G. S. 2277; R. S. 2417; 1712, II, 561. 

§ 865. Right Preserved Where it Appears That Concealed or Absent Per- 
son Sought is Living. — In case it should afterwards appear that such concealed 
or absent person sought was living at the time any proceedings under the pro- 
visions of this Chapter were had, such person, or any and all persons claiming 
title under or though such person concealed or absent, may reenter upon said 
estate, and may have their action of damages for the rents and profits during 
eviction. 

Civ. P. '22, § 821 ; Civ. '12, § 4059 ; Civ. '02, § 2958 ; G. S. 2278 ; R. S. 2418 ; 1712, II, 561. 

§ 866. Guardian to Continue in Possession, Etc., in Certain Cases. — Noth- 
ing herein contained shall prevent any guardian, husband, or trustee, from 
showing by satisfactory proof that the infant, married woman, or other person 
sought, was actually living at the time proceedings for a view of such person 
were commenced. 

Civ. P. '22, § 822 ; Civ. '12, § 4060 ; Civ. '02, § 2959 ; G. S. 2279 ; R. S. 2419 ; 1712, II, 561. 

§ 867. Guardians, Etc., Holding Estates After Determination of Life of 
Minor, Etc., Adjudged Trespassers. — Every person who, as guardian or trus- 
tee for any infant, and every other person having any estate determinable upon 
any life or lives, who, after the determination of such particular estate or in- 
terests, without the express consent of him, her, or them, who are, or shall be, 
next and immediately entitled upon and after the determination of such par- 
ticular estates or interests, shall hold over and continue in possession of any 
lands, tenements, or hereditaments, shall be, and are hereby, adjudged to be 
trespassers. 

Civ. P. '22, § 823 ; Civ. '12, § 4061 ; Civ. '02, § 2960 ; G. S. 2280 ; R. S. 2420 ; 1712, II, 563. 



233 Code of Civil Procedure § 868 

§ 868. Heirs, Etc., May Recover Damages. — Every person and persons, his, 
her, and their executors and administrators, who are, or shall be, entitled to 
any such lands, tenements, and hereditaments, upon or after the determination 
of such particular estates or interests, shall and may recover in damages against 
every such person or persons so holding over as aforesaid, and against his, her, 
or their executors or administrators, the full value of the profits received dur- 
ing such wrongful possession as aforesaid. 

Civ. P. '22, § 824 ; Civ. '12, § 4062 ; Civ. '02, § 2961 ; G. S. 2281 ; R. S. 2421 ; 1712, II, 563. 

§ 869. Right of Entry of Lawful Owner or Heirs Against Heirs of Disseizor 
— Exception. — The dying of any disseizor, seized of or in any lands, tenements, 
or other hereditaments, having no right or title therein, shall not be taken or 
deemed any such descent as to take away the entry of any such person or per- 
sons, or their heirs, which, at the time of the same descent, had good and lawful 
title of entry into said lands, tenements, or hereditaments, except such disseizor 
has had the peaceable possession of such lands, tenements, or hereditaments, 
for the space of ten years next after the disseizin therein by him committed, 
without entry or continual claim by or of such person or persons as have law- 
ful title thereunto. 

Civ. P. '22, § 825 ; Civ. '12, § 4063 ; Civ. '02, § 2962 ; G. 'S. 2282 ; R. S. 2422 ; 32 H. 8, c. 33 ; 
1712, II, 474. 

§ 870. Who May Bring Action to Determine Adverse Claim, and Quiet 
Titles to Real Estate. — ^Any person in possession of real property, by himself or 
his tenant, or any person having or claiming title to vacant or unoccupied real 
property, may bring an action against any person who claims, or who may or 
could claim, an estate or interest therein, or a lien thereon, adverse to him for 
the purpose of determining such adverse claim and the rights of the parties, 
respectively. 

Civ. P. '22, § 826 ; 1916, XXIX, 928. 

§ 871. Publication of Summons — Certain Personal Service Sufficient. — When 
any action is commenced to determine adverse claims, publication of the sum- 
mons may be made and service upon parties outside of the State and unknown 
claimants obtained, in the following manner. When the Sheriff of the county in 
which the action is brought shall have duly determined that the defendant 
cannot be found therein, and an affidavit of the plaintiff, or his attorney, shall 
have been filed Avith the Clerk stating that a cause of action exists to determine 
adverse claims to certain property, within said county, and that he believes the 
defendant, or defendants, naming them, is not a resident of the State, or cannot 
be found therein, and either that he has mailed a copy of the summons, by 
registered mail, to the defendant at his place of residence or that such resi- 
dence is not known to him, service of the summons may be made upon the de- 
fendant by three weeks' public notice thereof in the manner provided by law 
for publication of summons in civil actions : Provided, That personal service 
of such summons without the State, made after order for publication proved 
by the affidavit of the person making the same, made before an authorized of- 
ficer having a seal, shall have the same effect as the publication of the summons 
herein provided. 

Civ. P. '22, § 827 ; 1916, XXIX, 928. 

§ 872. Service on Unknown Parties — Lis Pendens — Matter to Be Referred 
to Master — Rights of Certain Minors and Non-Residents. — In any action brought 
to determine adverse claims of real property within this State, the plaintiff 
may insert in the title thereof, in addition to the names of such persons as are 



§ 873 Code of Civil Procedure 234 

known or appear of record to have some right, title, interest, estate or lien in 
or on the real property in controversy the following: "Also all other persons 
unknown, claiming any right, title, estate, interest in, or lien upon, the real 
estate described in the complaint herein." Service of the summons may be had 
upon all such unknown persons defendant by publication in the same manner 
as against non-resident defendants, upon the filing of an affidavit of the plain- 
tiff, his agent or attorney, stating the existence of a cause of action to try 
adverse claims within this State. The plaintiff shall, before commencement of 
such publication, file with the Clerk of the Court a notice of the pendency of 
the action, copy of which shall be published in the same newspaper with, and 
immediately following the summons. All such unknown persons so served shall 
have the same rights to appear and defend before and after judgment as 
would named defendants upon whom service is made by publication, and any 
order or judgment in the action shall be binding upon them, who have been 
served or who shall appear and defend, whether they be of age or minors ; and, 
if they be minors when judgment is rendered, they may be allowed to defend 
at any time within three years after coming of age : Provided, That in all ac- 
tions brought under this Statute, it shall be the duty of the Court, or a Judge 
thereof, to refer the same to a Master or Special Referee, to take the testimony 
as to the plaintiff's claim or title, and as to all the facts and circumstances 
(unless the same shall be taken in open court) , and carefully inquire as to the 
existence of claim by and residence of all non-residents, and if it shall appear 
to the Court or Judge that there probably exists a bona fide claim or lien on 
the part of any such non-resident or minor, whose name and whereabouts can 
be ascertained, no decree adjudicating the rights of such minor, or affecting 
or quieting the title (as against him or her) shall be rendered unless personal 
service upon him or her outside of the State after order for publication shall 
first be made and proved as hereinbefore provided. 
Civ. P. '22, § 828; 1916, XXIX, 929. 

§ 873. Costs. — If the defendant in his answer disclaim any interest in the 
property, or suffer judgment to be taken against him without answer, the 
plaintiff cannot recover costs, but if the summons has been served upon the 
defendant personally, and it is made to appear that, after the accrual of the 
cause of action and before commencement thereof, the plaintiff demanded in 
writing of the defendant, and the defendant neglected to execute within a 
reasonable time thereafter, a good and sufficient quit-claim deed of the prop- 
erty described in the complaint, upon tender of such deed ready for execution, 
the plaintiff shall nevertheless recover his costs. 

Civ. P. '22, § 829 ; 1916, XXIX, 930. 

§ 874. Effect of Judgment — Whom Bound. — Any judgment entered in an 
action to try adverse claims shall be binding upon all of the defendants joined 
in said action, and when unknown owners and claimants are joined as defend- 
ants, it shall be binding upon any and all persons or parties having or claiming, 
or who might or could claim, an interest in or lien upon said property adverse 
to the plaintiff, who have been served or who shall appear and defend, whether 
residents of this State or non-residents. 

Civ. P. '22, § 830 ; 1916, XXIX, 930. 

§ 875. Time Limitation Upon Reopening Matter. — No judgment or decree 
quieting title to land or determining the title thereto, or adverse claims therein, 
heretofore entered or hereinafter to be entered, shall be adjudged invalid or 
set aside for any reason, unless the action or proceding to vacate or set aside 



235 Code of Civil Procedure § 876 

such judgment or decree shall be commenced, or application for leave to de- 
fend be made within three years from the time of filing for record a certified 
copy of such judgment or decree, in the office of the Clerk of Court of the 
county in which the lands affected by such judgment or decree are situated or 
in case of minors, within three years after coming of age. 
Civ. P. '22, § 831 ; 1916, XXIX, 930. 

§ 876. Immaterial Procedural Errors To Be Disregarded — Certain Existing 
Law Unchanged. — At every stage of an action the Court shall disregard all er- 
rors or defects in pleadings and proceedings which do not affect the substan- 
tial rights of the adverse party, and no judgment shall be reversed or affected 
by reason thereof: Provided, That nothing in this Act shall be construed or 
held to change the existing law in reference to trials by jury in all actions of 
ejectment, or trespass to try titles or trespass quare clausum fregit, or in any 
action to recover possession of real estate. 

Civ. P. '22, § 832 ; 1916, XXIX, 930. 



CHAPTER 2 
Forcible Entry and Detainer, and Ejectment of Trespassers 

Article 1. Forcible Entry and Detainer, § 877. 
ArticI'E 2. Summary Ejectment of Trespassers, § 886. 



ARTICLE 1 
Forcible Entry and Detainer 

877. Peaceable Entry. 881. Action Against Wrongful Disseizor. 

878-9. Jurisdiction of Forcible Entries and 882. Treble Damages Recovered. 

Detainers. 883. Proceedings in Case of Forcible Entry. 

880. Feoffments by Persons Wrongfully in 884. Restitution of Possession. 

Possession. 885. Tenants Holding Three 'Years by Force. 

§ 877. None But Lawful and Peaceable Entry to Be Made. — No person shall 

make any entry into any lands and tenements, but in case where entry is given 

by law; and in such case not with strong hand, nor with multitude of people, 

but only in peaceable and easy manner. 

Civ. P. '22, § 883 ; Civ. '12, § 4064 ; Civ. '02, § 2963 ; G. S. 2290 ; R. S. 2423 ; 5 R. 2, c. 2 ; 
1712, II, 442. 

§ 878. Magistrates to Have Jurisdiction of Forcible Entries and Detainers. 

— ^Any two Magistrates of the county wherein such lands and tenements may be 

situated, shall have authority and power to inquire by the people of the same 

county, as well of them that make forcible entries in lands and tenements, as 

of them which hold the same with force. 

Civ. P. '22, § 834 ; Civ. '12, § 4065 ; Civ. '02, § 2964 ; G. S. 2291 ; R. S. 2424 ; 8 H. 6, c. 9 ; 
1712. II, 444. 

§ 879. To Put Party Ousted in Possession. — If it be found, before any of 
them, that any do contrary to this Chapter, then the said Magistrates shall 
cause to be reseized the lands and tenements so entered or holden, as afore- 
said, and shall put the party so put out in full possession of the same lands and 
tenements so entered or holden, as before. 

Civ. P. '22, § 835 ; Civ. '12, § 4066 ; Civ. '02, § 2965 ; G. S. 2292 ; R. S. 2425 • 1712, II, 444. 

§ 880. Feoffments Made by Person Wrongfully in Possession Void. — ^If any 

person, after such entry into lands or tenements holden with force, make a 



§ 881 Code of Civil Procedure 236 

feoffment or other discontinuance to any person, to have maintenance, or to 
take away and defraud the possessor of his recovery in any wise, and after- 
wards in an action thereof to be taken or pursued before Magistrates by due 
inquiry thereof, such feoffments and discontinuances are duly proved to be 
made for maintenance as aforesaid, then such feoffments or other discontinu- 
ances shall be void, frustrate, and of none effect. 

Civ. P. '22, § 836 ; Civ. '12, § 4067 ; Civ. '02, § 2966 ; G. S. 2293 ; R. S. 2426 ; 8 H. 6, c. 9 ; 
1712, II, 444. 

§ 881. Action May Be Had Against Person Wrongfully Disseizing. — If any 

person be put out or disseized of any lands or tenements in forcible manner, 
or put out peaceably, and be afterwards holden out with strong hand, or, after 
such entry, any feoffment or discontinuance in any wise thereof be made, to 
defraud and take away the right of the possessor, the party grieved in this be- 
half shall have an action against such disseizor. 

Civ. P. '22, § 837; Civ. '12, § 4068; Civ. '02, § 2967; G. S. 2294; R. S. 2427; 1712, II, 445. 

§ 882. In Case of Recovery, Plaintiff to Have Treble Damages. — If the 

party grieved recover in such action, and it be found by verdict, or in other 
manner by due form of law, that the party defendant entered with force into 
the lands and tenements, or, after his entry, did hold them with force, the 
plaintiff shall recover treble damages against the defendant. 

Civ. P. '22, § 838 ; Civ. '12, § 4069 ; Civ. '02, § 2968 ; G. S. 2295 ; R. S. 2428 ; 1712, II, 445. 

§ 883. Proceedings in Cases of Forcible Entry, Etc., Same as Tenants Hold- 
ing Over. — The forms and proceedings before Magistrates in cases of forcible 
entry and detainer, shall be the same as are prescribed by law in cases where 
tenants hold over after the expiration of their leases. 

Civ. P. '22, § 839 ; Civ. '12, •§ 4070 ; Civ. '02, § 2969 ; G. S. 2296 ; R. S. 2429 ; 1829, VI, 338. 

§ 884. Restitution of Possession Given to Avoid Entries With Force, in 
Estates for Years, Etc. — Any two Magistrates, authorized and enabled, upon 
inquiry, to give restitution of possession unto tenants of any estate of free- 
hold of their lands or tenements which shall be entered upon with force, or 
from them withholden by force, shall have the like and the same authority and 
ability (upon indictment of such forcible entries or forcible withholdings be- 
fore them duly found) to give like restitution of possession unto tenants for 
term of years, of lands or tenements by them so holden, which shall be entered 
upon by force, or holden from them by force. 

Civ. P. '22, § 840; Civ. '12, § 4071; Civ. '02, § 2970; G. S. 2297; R. S. 2430; 21 J. 1, c. 15; 
1712, II, 445. 

§ 885. Provisions Not to Affect Tenants Who Have Held by Force Three 
Years. — They which keep their possessions with force in any lands and tene- 
ments whereof they or their ancestors, or they whose estate they have in such 
lands and tenements, have continued their possessions in the same by three 
years or more, shall not be endangered by force of this Chapter. 

Civ. P. '22, § 841 ; Civ. '12, § 4072 ; Civ. '02, § 2971 ; G. S. 2298 ; R. S. 2431 ; 8 H. 6, c. 9 ; 
1712, II, 445. 

ARTICLE 2 

Summary Ejectment of Trespassers 

886. Magistrate's Dut.v in Case of Trespass. 887. Fees. 

888. Appeal and Injunction. 

§ 886. Duty of Magistrate in Cases of Trespasses — Proviso. — If any per- 
son shall have gone into or shall hereafter go into possession of any lands or 



237 Code of Civil Procedure § 887 

tenements of another without his consent or without warrant of law, it shall 
be lawful for the owner of the land so trespassed upon to apply to any Magis- 
trate to serve a notice on such trespasser to quit the premises, and if, after the 
expiration of five days from the personal service of such notice, such trespasser 
refuses or neglects to quit, it shall then be the duty of such Magistrate to is- 
sue his warrant to any Sheriff or Constable, requiring him forthwith to eject 
such trespasser, using such force as may be necessary : Provided, however, 
That if the person in possession shall, before the expiration of the said five 
days, appear before such Magistrate and satisfy him that he has a "hona fide'' 
color of claim to the possession of such premises, and enter into bond to the 
person claiming the land, with good and sufficient security, to be approved by 
the Magistrate,, conditioned for the payment of all such costs and expenses as 
the person claiming to be the owner of the land may incur in the successful 
establishment of his claim, and also for any damages which the owner of the 
land may sustain by reason of the possession being withheld from him, by any 
of the modes of proceeding now provided by law, the said Magistrate shall 
not issue his warrant as aforesaid. 

Civ. P. '22, § 842 ; Civ. '12, § 4073 ; Civ. '02, § 2972 ; R. S. 2432 ; 1883, XVIII, 556 ; 1912, 
XXVII, 577. 

§ 887. Fee of Magistrate and Sheriff or Constable. — The Magistrate shall 
be entitled to demand and receive from the person applying for such warrant 
a fee of two dollars before issuing the same, and the Sheriff or Constable shall 
in like manner be entitled to demand and receive a fee of two dollars and mile- 
age before executing such warrant, from the person applying for the same. 

Civ. P. '22, § 843 ; Civ. '12, § 4074 ; Civ. '02, § 2973 ; R. S. 2433 ; 1883, XVIII, 556. 

§ 888. Either Party Has Right of Appeal — Injunction — Time of Decision. — 

Either party to these proceedings shall have the right of appeal. The magis- 
trate shall not issue his warrant until the expiration of five days after he an- 
nounces his decision, and in the meantime the defendant may apply for an 
injunction, as in other cases, upon giving the bond required by Section 886, 
restraining the execution of such warrant pending the determination of his 
appeal by the Circuit Court. 

Civ. P. '22, § 844 ; Civ. '12, § 4075 ; Civ. '02, § 2974 ; R. S. 2434 ; 1883, XVIII, 556 ; 1911, 
XXVII, 134. 



TITLE 17 

Definitions and General Principles 

889. Definition of Real Property. ' 895. Inconsistent Statutory Provisions. 

890. Definition of Personal Property. 896. Circuit Court Rules. 

891. Definition of Property. 897. Supreme Court Rules. 

892. Definition of Clerk. 898. Equity Rule Prevails in Case of Con- 

893. Substitutes for Undertakings. flict. 

894. Rules of Construction. 

§ 889. Definition of Real Property. — The words "real property" and "real 
estate," as used in this Code of Procedure are coextensive with lands, tene- 
ments and hereditaments. 

Civ. P. '22, § 845 ; Civ. P. '12, § 482 ; Civ. P. '02, § 444 ; 1870, XIV, § 466. 

§ 890. Definition of Personal Property. — The words "personal property," 
as used in this Code of Procedure, include money, goods, chattels, things in 
action, and evidences of debt. 

Civ. P. '22, § 846 ; Civ. P. '12, § 483 ; Civ. P. '02, § 445 ; 1870, XIV, § 467. 



§ 891 Code of Civil Procedure 238 

§ 891. — Definition of Property. — The word "property," as used in this Code 
of Procedure, includes property, real and personal. 

Civ. P. '22, § 847 ; Civ. P. '12, § 484 ; Civ. P. '02, § 446 ; 1870, XIV, § 468. 

§ 892. Definition of Clerk. — The word "Clerk," as used in this Code of 
Procedure, signifies the Clerk of the Court where the action is pending, and, 
in the Supreme Court, the Clerk of the county mentioned in the title of the 
complaint, or in another county to which the Court may have changed the 
place of trial, unless otherwise specified. 

Civ. P. '22, § 848 ; Civ. P. '12, § 485 ; Civ. P. '02, § 447 ; 1870, XIV, § 469. 

§ 893. Undertakings in Civil Actions or Special Proceedings. — ^In all cases 
in which an undertaking is or may be required by any party to a civil action or 
special proceeding with sureties, such person or persons may in lieu thereof, 
secure and furnish a bond of indemnity or policy of assurance or insurance for 
the amount of such undertaking written by any surety or indemnity company 
duly incorporated and authorized to do business in this State. 

Civ. P. '22, § 849 ; Civ. P. '12, § 486 ; 1910, XXVI, 755. 

§ 894. Rules of Construction. — The rule of common law, that Statutes in 
derogation of that law are to be strictly construed, has no application to this 
Code of Procedure. 

Civ. P. '22, § 850 ; Civ. P. '12, § 487 ; Civ. P. '02, § 448 ; 1870, XIV, § 470. 

§ 895. Inconsistent Statutory Provisions Repealed. — All statutory provi- 
sions inconsistent with this Code of Procedure are repealed; but this repeal 
shall not revive a Statute or law which may have been repealed or abolished by 
the provisions hereby repealed. And all rights of action given or secured by 
existing laws may be prosecuted in the manner provided by this Code of Pro- 
cedure. If a case shall arise in which an action for the enforcement or protec- 
tion of a right, or the redress or prevention of a wrong, cannot be had under 
this Code of Procedure, the practice heretofore in use may be adopted so far 
as may be necessary to prevent a failure of justice. 

Civ. P. '22, § 851; Civ. P. '12, § 488; Civ. P. '02, § 449; 1870, XIV, § 471. 

§ 896. Judges to Meet and Make General Rules. — The Justices of the Su- 
preme Court and the Judges of the Circuit Courts shall meet in general con- 
vention on such day and at such place as may be designated by the Chief Jus- 
tice, at least once in every two years, counting from the year of our Lord one 
thousand eight hundred and eighty-two, for the purpose of revising and 
amending the Rules of the Circuit Court, and establishing such additional rules 
as may be deemed necessary to regulate the practice in the Circuit Courts : 
Provided, Such alterations or additions be not inconsistent with any of the 
Statutes of this state : Provided, further, That said Judges shall cause to be 
transmitted to all the Clerks of the Circuit Courts of this State copies of all 
rules amended and revised, and of all new rules made by them, within ten days 
from such amendment, revision or adoption. 

Civ. P. '22, § 852 ; Civ. P. '12, § 489 ; Civ. P. '02, § 450 ; 1870, XIV, § 473 ; 1882, XVIII, 56 ; 
1908, XXV, 1035. 

§ 897. Justices of Supreme Court May Make Rules. — The Justices of the 
Supreme Court shall, from time to time, make such rules for the orderly con- 
duct of business in said Court as they may deem proper, not inconsistent with 
this Code of Procedure. 

Civ. P. '22, § 853 ; Civ. P. '12, § 490 ; Civ. P. '02, § 451 ; 1870, XIV, § 474. 



239 Code of Civil Procedure § 898 

§ 898. Equity Rules to Prevail in Cases of Conllict. — Generally in all mat- 
ters in which there is any conflict or variance between the rules of equity and 
the rules of the common law, with reference to the same matter, the rules of 
equity shall prevail. 

Civ. P. '22, § 854 ; Civ. P. '12, § 492 ; Civ. P. '02, § 453 ; 1870, XIV, 476. 



CODE OF CRIMINAL PROCEDURE 



Code of Criminal Procedure 



TITLE 1 
Criminal Procedure 

Chapter 1. Arrest, Examination, Committment and Bail, § 1. 

Chapter 2. Jurisdiction of Magistrates and Their Courts, § 19. 

Chapter 3. Criminal Proceedings in Municipal Courts, § 49. 

Chapter 4. Proceedings in Courts of General Sessions, § 71. 

Chapter 5. Procedure against Corporations, § 87. 

Chapter 6. Rights of Persons Accused, § 91. 

Chapter 7. Indictments and Trials, § 98. 

Chapter 8. Appeals and New Trials, § 122. 

Chapter 9. Judgment and Execution, § 132. 

Chapter 10. The Writ of Habeas Corpus, § 160. 

Chapter 11. Inquests on the Dead, § 180. 



CHAPTER 1 

Arrest, Examination, Commitment and Bail 



1. Who may Arrest Felon. 

2. Arrest by Citizen at Nisjht. 

3. Arrest without Warrant by Sheriffs and 

Deputies. 

4. Arrest by City Police within One Mile 
of Limits. 

5. Authority of Rural Police in Stated 
Counties. 

6. Exemption of Persons Attending Mus- 
ters. 

7. Warrants Issued by Officers for Fugi- 
tives. 

8. Compensation of Agents Appointed by 
Governor. 

9. Bail Granted by Clerks of Court. 



10. Discharge of Prosecutor on Recogni- 
zance, 

11. Discharge of Witness on Recogni- 
zance. 

12. Penalty for Failure to Appear. 

13. Clerk's Cost. 

14. Who may be Confined. 

15. Police Power at Fairs or Amusement 
Places. 

16. Duties of Sheriff of Marlboro County. 

17. Appointment of Constables for Chester 
and Williamsburg Counties. 

18. Arrest by Inspector Appointed by Board 
of Fisheries. 



§ 1. Who May Arrest a Felon, and Where. — Upon view of a felony commit- 
ted, or upon certain information that a felony has been committed, or upon view 
of a larceny committed, any person may arrest the felon or thief, and take him 
to a Judge or Magistrate, to be dealt with according to law. 

Cr. P. '22, § 1 ; Cr. C. '12, § 1 ; Cr. C. '02, § 1 ; G. S. 2616 ; R. S. 1 ; 1866, XIII, 406 ; 
1898, XXII, 809. 

§ 2. When Citizens May Arrest and the Means to Be Used. — It shall be law- 
ful for any citizen to arrest any person in the night-time, by such efficient 
means as the darkness and the probability of his escape render necessary, even 
if his life should be thereby taken, in eases where he has committed a felony, 
or has entered a dwelling house with evil intent, or has broken or is breaking 
into an outhouse, with a view to plunder, or has in his possession stolen prop- 
erty, or, being under circumstances which raise just suspicion of his design 
to steal or to commit some felony, flees when he is hailed. 

Cr. P. '22, § 2 ; Cr. C. '12, § 2 ; Cr. C. '02, § 2 ; G. S. 2617 ; R. IS. 2 ; 1866, XIII, 406. 

§ 3. Sheriffs and Deputies to Arrest for Offenses Committed in View. — It 
shall be lawful for the Sheriffs and Deputy Sheriffs of this State to arrest with- 



§ 4 Code op Criminal Procedure 244 

out warrant any and all persons who, within their view, violate any of the 
criminal laws of this State: Provided, Such arrest may be made at the time 
of such violation of law or immediately thereafter. 
Cr. P. '22, § 3 ; Cr. C. '12, § 3 ; Cr. C. '02, § 3 ; 1898, XXII, 808. 

§ 4. Police of any City or Town May Arrest Within One Mile of Corporate 
Limits. — The police authorities of all towns and cities of this State are hereby 
authorized and empowered to make arrests of all offenders against the municipal 
ordinances and statutes of this State committed within the corporate limits 
at any place within a radius of one mile of the corporate limits, with or with- 
out a warrant, when such police authorities are in pursuit of such offender. 

Cr. P. '22, § 4 ; Or. C. '12, § 4 ; 1908, XXV, 1089. 

§ 5. Authority of County Police. — The Rural or County Policemen for 
Richland, Aiken and Laurens Counties shall have authority for any suspected 
freshly committed crime, whether upon view or upon prompt information or 
complaint, to arrest without warrant, and in pursuit of the criminal to enter 
houses or break therein, whether in their own county or in an adjoining coun- 
ty; and they shall have authority to summon the posse comitahis to assist in 
enforcing the laws, and any citizen who shall fail to respond and render as- 
sistance when so summoned shall be guilty of a misdemeanor, and upon con- 
viction shall be punished by imprisonment for thirty days or fine of one hun- 
dred dollars. 

Or. P. '22, § 5 ; Or. 0. '12, § 5 ; 1909, XXVI, 418 ; 1910, XXVI, 786, 793. 

§ 6. No Civil Process to Be Executed on Any Person Attending Musters. — 

No civil officer shall execute any process arresting and confining the person, 

or requiring bail or surety (unless for treason, felony, or breach of the peace), 

on any person engaged in the military service required by the laws of this 

State, going to or returning from the same, under the penalty of twenty-five 

dollars, and the service of any such process shall be void. 

Or. P. '22, § 6 ; Or. O. '12, § 6 ; Or. 0. '02, § 4 ; G. S. 2618 ; R. S. 3 ; 1794, VIII, 489 ; 1839, 
XI, 41 ; 1841, XI, 210. 

§ 7. Officers May Issue Warrants for Fugitives Charged With Crime — 
Proceedings. — (1). Any officer in the State authorized by law to issue war- 
rants for the arrest of any person charged with crime shall, on satisfactory in- 
formation laid before him under the oath of any credible person, that any 
fugitive in the State has committed, out of the State, and within any other 
State, any offense which by the law of the State in which the offense was com- 
mitted as punishable either capitally or by imprisonment for one year or up- 
wards in any State prison, shall have full power and authority, and is hereby re- 
quired, to issue a warrant for said fugitive, and commit him to any jail within 
the State for the space of twenty days, unless sooner demanded by the public 
authorities of the State wherein the offense may have been committed, agreeable 
to the Act of Congress in that case made and provided ; if no demand be made 
within the time, the said fugitive shall be liberated, unless sufficient cause be 
shown to the contrary: Provided, That nothing herein contained shall be con- 
strued to deprive any person so arrested of the right to release on bail as in 
cases of similar character of offenses against the laws of this State. 

(2) To Keep Record and Transmit Copy to Governor. — Every officer com- 
mitting any person under this Section shall keep a record of the whole proceed- 
ings before him, and immediately transmit a copy thereof to the Governor of this 
State for such action as he may deem fit therein under the law. 



245 Code of Criminal Procedure § 8 

(3) Governor to Inform Governor of Foreign State. — The Governor of 
this State shall immediately inform the Governor of the State in which the 
crime is alleged to have been committed of the proceedings had in such case. 

(4) Sheriff and Jailer to Surrender Fugitive Under Order op Governor. 

• — Every Sheriff or Jailer, in whose custody any person committed under this 
Section shall be, upon the order of the Governor of this State, shall surrender 
him to the person named in said order for that purpose. 

Cr. P. '22, § 7 ; Cr. C. '12, § 7 ; Cr. C. '02, § 5 ; G. S. 2620 ; R. S. 4 ; 1882, XVII, 784. 

§ 8. Agents Appointed by Governor to Receive Three Dollars a Day and 
Expenses. — In all cases of requisition for the delivery of fugitives from justice 
the agents appointed by the Governor to bring such fugitives into this State 
shall receive as compensation for their services the sum of three dollars per 
da}^ for the time actually employed, and shall be reimbursed their expenses ac- 
tually and necessarily incurred in the performance of their duties. 

Approval of Accounts — Payment. — -Upon presentation to the Governor of 
the accounts of such agents, itemized and duly verified by their affidavits there- 
to annexed, the Governor, if he approved the same as correct, shall endorse his 
approval thereon, and upon presentation of the said accounts so endorsed to 
the Comptroller General, he shall draw his warrants on the State Treasurer for 
the amount thereof, payable out of the regular contingent fund of the Governor. 

Cr. P. '22, § 8 ; Cr. C. '12, § 8 ; Cr. C. '02, § 6 ; R. S. 5 ; 1887, XIX, 850. 

§ 9. Clerks of Court May Grant Bail to Witnesses and Prisoners Charged 
with Misdemeanors — Exception. — The Clerks of Court of this State are hereby 
authorized and empowered to grant bail to all witnesses in any and all cases and 
to discharge them from custody during the pendency of any criminal case 
except in cases where the witness or witnesses have been adjudged in contempt 
of Court and imprisoned by the Court. 

The Clerks of Court in this State are hereby authorized and empowered to 
admit to bail and to discharge from custody any person or persons who may be 
charged with any offense less than a felony or who shall have been committed 
to jail under final orders of the Court: Provided, This Section shall not apply 
to defendants who have been committed to jail by the Court for a failure to 
comply with the terms of their recognizance. 

1923, XXXIII, 72. 

§ 10. Proceedings for Discharge of Prosecutor on Own Recognizance in 
Cases Not Capital. — Hereafter, when any prosecutor, resident in the judicial 
district where the prosecution is instituted, in criminal cases less than capital, 
shall have been committed to jail by reason of his or her inability to give surety, 
on his or her recognizance to prosecute, the Clerk of the Court of Common Pleas 
and General Sessions of such district shall have power to discharge such pros- 
ecutor on his or her own recognizance, upon being satisfied of his or her inability 
to give such surety. 

Cr. P. '22, § 9 ; Cr. C. '12, § 9 ; Cr. C. '02, § 7 ; G. S. 2625 ; R. S. 6 ; 1857, XII, 636. 

§ 11. Discharge of Witness on Own Recognizance in Cases Not Capital.— 

Whenever any witness in a criminal case less than capital shall have been com- 
mitted to jail by reason of the like inability to give surety on a recognizance to 
testify, the Clerk of the Court shall have the like power to discharge such wit- 
ness on his or her own recognizance. 

Cr. P. '22, § 10 ; Cr. C. '12, § 10 ; Cr. C. '02, § 8 ; G. S. 2626 ; R. S. 7 ; 1857, XII, 636. 



§ 12 Code of Criminal Procedure 246 

§ 12. Penalty for Failure of Prosecutor or Witness to Appear. — Prosecutors 
or witnesses failing to appear under such recognizance shall be deemed guilty 
of a misdemeanor, and the Attorney General and Solicitor are authorized to 
order warrants to issue against such offenders without affidavit or bond to pros- 
ecute. 

Cr. P. '22, § 11 ; Or. C. '12, § 11 ; Or. C. '02, § 9 ; G. S. 2627 ; R. S. 8 ; 1857, XII, 636. 

§ 13. Clerk's Costs. — The Clerks of the Courts shall be entitled to one dol- 
lar costs for each recognizance taken under the provisions of Sections 10 and 
11 of this Chapter. 

Cr. P. '22, §12 ; Cr. C. '12, § 12 ; Cr. C. '02, § 10 ; G. S. 2628 ; R. S. 9 ; 1857, XII, 636. 

§ 14. What Persons May Be Confined. — The Police Officer or Deputy Sheriff 
in industrial communities shall have the power to confine in such prison or build- 
ing, as the president or treasurer or other executive officer having the manage- 
ment of any industrial corporation may provide in industrial communities, any 
person or persons who may be arrested charged with violation of law until 
such arrested person or persons can be conveniently carried before a Magistrate : 
Provided, however, That such Police Officer or Deputy Sheriff shall not detain 
any arrested person in said prison longer than eighteen hours, except persons 
arrested on Saturdays, and then not over forty-two hours: Provided, further, 
That such Police Officer or Deputy Sheriff shall provide water and food, and 
shall also furnish such arrested person or persons with sufficient bedding or 
clothing to make them comfortable in cold weather. 

Cr. P. '22, § 13 ; Cr. C. '12, § 14 ; 1910, XXVI, 765. 

§ 15. Powers of Police Officer or Deputy for Fair Associations or Places of 
Amusement. — A Police Officer or Deputy Sheriff appointed for any fair associa- 
tion, or park or place of amusement under the provisions of Section 1417, of 
the Civil Code, shall have, do and exercise all the rights, duties and powers 
prescribed by law for Constables or Magistrates, and such powers as are usually 
exercised by marshals and policemen of towns and cities, and shall also act as 
a conservator of the peace ; shall take into custody and carry before the nearest 
Magistrate any person who may in his view engage in riotous conduct or viola- 
tion of the peace, and refusing upon his command to desist therefrom ; and shall 
also arrest any person who may in his view commit any felony or misdemeanor, 
and carry him before a Court of competent jurisdiction; and shall execute any 
and all criminal process from Magistrates' Courts, and shall have the power 
to call to his aid a posse comitatus to assist him in the discharge of his duties ; 
and any person refusing to obey his summons shall be liable to indictment and 
prosecution as for a misdemeanor. 

Cr. P. '22, § 14 ; Cr. C. '12, § 15 ; 1908, XXV, 1086, 1153. 

§ 16. Duties of Sheriff of Marlboro County.— (1) The Sheriff of Marlboro 
County and his deputy shall perform all the duties heretofore devolving upon 
Constables appointed under the prohibition, dispensary or other laws relating 
to the traffic in alcoholic, vinous, spirituous, or other intoxicating liquors; also 
the said Sheriff and Deputy shall have and exercise all the powers now con- 
ferred upon peace officers within this State; the said Sheriff and Deputy shall 
be specially clothed with the authority to arrest, without warrant, any person 
suspected by them, upon satisfactory information, of violating the prohibition 
or dispensary law: Provided, That any person so arrested shall, within twenty- 
four hours after his arrest, excepting if arrested on Saturday, then within forty- 
eight hours, be taken before a Magistrate, and within a reasonable time there- 



247 Code of Criminal Procedure § 17 

after, given a hearing upon a warrant, which shall have been within that time 
procured. 

(2) Compensation. — Said deputy so appointed shall receive a salary of six 
hundred dollars per annum, to be paid monthly; said deputy, before entering 
upon the discharge of his duties, shall execute an official bond, in the usual 
form, in the sum of one thousand dollars, which bond shall be filed with the 
Clerk of the Court of said county, and it shall be the duty of the Sheriff to 
provide the said deputy with the necessary conveyances for the proper discharge 
of his duties. 

(3) May Employ Detective. — Whenever the said Sheriff shall deem it neces- 
sary for the proper enforcement of law within said county, he may, with the 
consent of the County Supervisor, employ a detective who shall act under his 
directions: Provided, That before any such detective can be employed, the 
County Supervisor and Sheriff shall agree upon his terms of service and com- 
pensation. 

Cr. P. '22, § 15 ; Cr. 0. '12, § 16 ; 1910, XXVI, 725. 

§ 17. Governor to Appoint Constables for Chester and Williamsburg Coun- 
ties. — (1) The Governor, upon the recommendation of the members of the Gen- 
eral Assembly from Chester and Williamsburg Counties, respectively, shall 
appoint a constable for each of the Counties of Chester and Williamsburg, whose 
especial duty it shall be to enforce the provisions of law in said counties pro- 
hibiting the sale of alcoholic liquors, and shall have and exercise all the powers 
now conferred by law upon sheriffs, constables and other peace officers. Before 
entering upon the discharge of his duties each said constable shall enter into 
bond in the sum of five hundred dollars, in the usual form, with sufficient surety 
to be approved by the Clerk of the Court of said counties, respectively, con- 
ditioned for the faithful performance of his duty; said constable shall be sub- 
ject to removal by the Governor upon request of the Sheriff of said counties, re- 
spectively. 

(2) To Be Under Control of Sheriff. — The said constables shall be under 
the control of and subject to the orders of the Sheriff of each said county, re- 
spectively, and, each shall receive as compensation for his services eighty dol- 
lars per month, payable monthly, and such actual expenses as may be incurred 
in the performance of his duties upon the filing of an itemized and sworn state- 
ment of such expenses : Provided, Said expenses shall not exceed in any one 
year the sum of three hundred dollars. 

(3) Expenses. — The amounts above provided for shall be paid out of the 
ordinary county funds. All fines collected from persons convicted as a result 
of the arrest by said constable shall be turned into the ordinary county funds, 
and whenever the fines in any year fail to equal the amount paid out on salary 
and expenses of said officer, he shall immediately be dismissed from the service 
by the Sheriff. 

Cr. P. '22, § 16 ; Cr. 0. '12, § 17 ; 1910, XXVI, 727. 

§ 18. Arrests by Inspector Appointed by Board of Fisheries. — Any inspec- 
tor appointed under Article 13, Chapter 21, of the Civil Code shall have au- 
thority, without warrant, to arrest any person found violating the provisions 
of this Article of the Code : Provided, That he shall at once take the person so 
arrested before the nearest Magistrate and swear out the proper arrest warrant, 
and any such inspector shall be authorized and empowered to make all seizures 
provided for in said Sections. 

Cr. P. '22, § 17 ; Cr. C. '12, § 18 ; 1907, XXV, 508 ; 1908, XXV, 1158. 



§ 19 Code of Criminal Procedure 248 

CHAPTER 2 
Jurisdiction of Magistrates and Their Courts 

19-20. Powers and Jurisdiction. 34. Binding Over Witnesses. 

21-2. Breach of Peace. 35. Breach of Peace in Magistrate's View. 

23. Larceny. 36. Bail in Non-Capital Cases. 

24. Receiving Stolen Goods. 37. Deposit in Lieu of Recognizances. 

25. Obtaining Property Under False Pre- 38. Scale of " Recognizances. 

tenses. 39. Refusal to Enter into Recognizances. 

26. Arrest of Persons Charged with Offense. 40-1. Return of Papers and Report to Clerk. 

27. Proceedings by Information. 42. Information of Impending Duel. 

28. Trial by Jury. 43. Change of Venue. 

29. Pay of Jurors in York and Jasper. 44. Warrant to Break Open Doors of Gam- 

30. Failure of Jurors to Attend. bling Places. 

31. Magistrates in Charleston. 45. Prosecutor Not to Serve Warrant. 

32. Appointing Special Officers to Arrest 46. Seach Warrants. 
Persons Charged with Felony. 47. Endorsement of Warrant. 

33. Preliminary Examination. 48. Fines at State Fair. 

§ 19. Generally. — Magistrates shall have and exercise, within their re- 
spective counties, all the powers, authority and jurisdiction in criminal cases 
hereinafter set forth. 

Cr. p. '22, § 18 ; Cr. C. '12, § 19 ; Cr. C. '02, § 11 ; G. S. 822 ; R. S. 10 ; 1870, XIV, 402. 

§ 20. Jurisdiction Over Offenses Where Fine is Under $100 and Imprison- 
ment Less Than Thirty Days. — They shall have jurisdiction of all offenses 
which may be subject to the penalties of either fine or forfeiture not exceeding 
one hundred dollars, or imprisonment in the jail or workhouse not exceeding 
thirty days ; and may impose any sentence within those limits, singly or in the 
alternative. 

Cr. P. '22, § 19 ; Cr. C. '12, § 20 ; Cr. C. '02, § 12 ; G. iS. 823 ; R. S. 11 ; 1870, XIV, 402. 

§ 21. Extent to Which They May Punish Breach of Peace.— They may 

punish by fine not exceeding one hundred dollars, or imprisonment in the jail 

or house of correction not exceeding thirty days, all assaults and batteries, 

and other breach of the peace, when the offense is not of a high and aggravated 

nature, requiring, in their judgment, greater punishment. 

Cr. P. '22, § 20 ; Cr. C. '12, § 21 ; Cr. C. '02, § 13 ; G. S. 824 ; R. S. 12 ; Const., Art. V, 
§ 21; 1870, XIV, 402. 

§ 22. May Arrest All Affrayers and Others Threatening Breach of Peace. 

— They may cause to be arrested all affrayers, rioters, disturbers, and breakers 
of the peace, and all who go armed offensively, to the terror of the people, and 
such as utter menaces or threatening speeches, or otherwise dangerous and dis- 
orderly persons. Persons arrested for any of said offenses shall be examined by 
the Magistrate before whom they are brought, and may be tried before him, and 
if found guilty may be required to find sureties of the peace, and be punished 
within the limits prescribed in Section 3, or when the offense is of a high and 
aggravated nature, they may be committed or bound over for trial before the 
Court of General Sessions. 
Cr. P. '22, § 21 ; Cr. C. '12, § 22 ; Cr. C. '02, § 14 ; R. S. 13 ; 1870, XIV, 402. 

§ 23. Jurisdiction in Larceny. — Magistrates shall have jurisdiction of lar- 
cenies, by stealing of the property of another, of money, goods or chattels, or 
any bank note, bond, promissory note, bill of exchange, or other bill, order, or 
certificate, or any book of accounts for or concerning money or goods due, or 
to become due, or to be delivered, or any deed or writing containing a convey- 
ance of land, or any other valuable contract in force, or any receipt, release, or 



249 Code of Criminal Procedure § 24 

defeasance, or any writ, process, or public record, if the property stolen does 
not exceed twenty dollars in value. 

Cr. P. '22, § 22 ; Cr. C. '12, § 24 ; Cr. C. '02, § 16 ; G. S. 826 ; R. S. 15 ; 1870, XIV, 403. 

§ 24. In Receiving Stolen Goods. — They shall have jurisdiction of the of- 
fenses of buying, receiving or aiding in the concealment of stolen goods and 
other property, where they would have jurisdiction of the larceny of the same 
goods or property. 

Cr. P. '22, § 23 ; Cr. C. '12, § 25 ; Cr. C. '02, § 17 ; G. S. 827 ; R. S. 16 ; 1870, XIV, 403. 

§ 25. In Obtaining Property Under False Pretenses. — They shall have 
jurisdiction of the offenses of obtaining property by any false pretense, or any 
privy or false token, or by any game, device, sleight of hand, pretensions to 
fortune-telling, trick or other means, by the use of cards or other implements 
or instruments, where they would have jurisdiction of a larceny of the same 
property, and may punish said offenses the same as larceny. 

Cr. P. '22, § 24 ; Cr. C. '12, § 26 ; Cr. C. '02, § 18 ; G. S. 828 ; R. S. 17 ; 1870, XIV, 403. 

§ 26. Can Arrest Persons Charged With Offense. — They shall cause to be 
arrested all persons found within their counties charged with any offense and 
persons who after committing any offense within the county escape out of the 
same ; examine into treasons, felonies, grand larcenies, high crimes and mis- 
demeanors; and commit or bind over for trial those who appear to be guilty 
of crimes or offenses not within their jurisdiction, and punish those guilty of 
such offenses within their jurisdiction. 

Cr. P. '22, § 25 ; Cr. C. '12, § 27 ; Cr. C. '02, § 19 ; G. S. 829 ; R. S. 18 ; 1870, XIV, 403. 

§ 27. All Proceedings to Be by Information. — All proceedings before Magis- 
trate in criminal cases shall be commenced on information under oath, plainly 
and substantially setting forth the offense charged, upon which, and only which, 
shall a warrant of arrest issue. 

The information may be amended at any time before trial. 

All proceedings before Magistrates shall be summary, or with only such 
delay as a fair and just examination of the case requires. 

Cr, P. '22, § 26 ; Cr. C. '12, § 28 ; Cr. C. '12, § 20 ; G. S. 830 ; R. S. 19 ; 1870, XIV, 403. 

§ 28. AU Persons Entitled to Trial by Jury. — Every person arrested and 
brought before a Magistrate, charged with an offense within his jurisdiction, 
shall be entitled, on demand, to a trial by jury, which shall be selected as pro- 
vided in Section 1622. 

Cr. P. '22, § 27 ; Cr. C. '12, § 29 ; Cr. C. '02, § 21 ; G. S. 831 ; R. S. 20 ; 1870, XIV, 403. 

§ 29. Pay for Jurors Serving in Magistrates' Courts in Criminal Cases, in 
York and Jasper Counties. — Jurors serving in the Courts of Magistrates, in 
criminal cases, in York and Jasper Counties, shall be entitled to receive a per 
diem of fifty cents for each day of attendance, to be certified by such Magis- 
trates : Provided, That in Jasper County jurors so serving in criminal cases 
in Magistrates' Courts shall be paid the said sum of fifty cents per day by the 
county. 

Cr. P. '22, § 28 ; 1917, XXX, 161. 

§ 30. Penalty for Failure of Jurors to Attend When Summoned by Mag- 
istrate or Police Court. — If any juror duly summoned shall neglect or refuse 
to appear in obedience to any venire issued by any Police or Municipal or 
Magistrate's Court, and shall not within forty-eight hours render to the Re- 
corder or Magistrate holding such Police or Magistrate Court, and issuing the 



§ 31 Code of Criminal Procedure 250 

venire, a sufficient reason for his delinquency, he shall forfeit and pay a fine of 
ten ($10.00) dollars to the treasury of the municipality or county where the 
cause is tried, to be assessed by such Recorder or such Magistrate so holding 
the Police or Magistrate Court and collected on his warrant without other 
process; and a failure to pay forthwith such fine so assessed shall constitute a 
contempt of Court and be punished accordingly: Provided, No person shall be 
required to serve on a jury in said Courts oftener than once in each month of 
the year. 

Cr. P. '22, § 29 ; Cr. 0. '12, § 30 ; 1907, XXV, 609 ; 1908, XXV, 1087. 

§ 31. Magistrates in Charleston Can Try Offenses Against City Ordinances. 

— Magistrates residing within the limits of the City of Charleston are vested 
with jurisdiction to try, determine and impose the penalties authorized by ordi- 
nance of the City Council of Charleston. 

Cr. P. '22, § 30 ; Cr. C. '12, § 31 ; Cr. C. '02, § 22 ; G. S. 832 ; R. S. 21 ; 1870, XIV, 382. 

§ 32. Appointing Special Officers to Arrest Persons Charged With Crime 
Above Misdemeanor. — ^Whenever a Magistrate shall have issued a warrant for 
the arrest of any person charged with an offense above the grade of a mis- 
demeanor, such Magistrate shall be authorized to select any citizen or citizens 
of the county to execute the same, upon his endorsement upon the said warrant 
that, in his jurgment, the selection of such person or persons will be conducive 
to the certain and speedy execution of the said warrant; and the person or 
persons so selected shall have all the powers now or hereafter conferred by law 
upon any constable within this State ; and any person or persons selected in the 
manner provided for in this Section shall be required forthwith to proceed to 
execute the said warrant ; and upon his willfully, negligently or carelessly fail- 
ing to make the arrest, or permitting the party to escape after arrest, he or they 
shall be punished, upon conviction, on indictment, by fine and imprisonment, 
in the county jail, in the discretion of the Judge before whom the indictment 
may be tried ; said imprisonment not to be less than six months. 

Cr. P. '22, § 31 ; Cr. C. '12, § 32 ; Cr. C. '02, § 23 ; G. S. 838 ; R. S. 22 ; 1871, XIV, 666. 

§ 33. Magistrates Must Hold Preliminary Examinations Upon Demand of 
Defendant — ^When — Rules Regulating, Etc. — It shall be the duty of any Magis- 
trate who issues a warrant charging a crime beyond his jurisdiction to grant and 
to hold a preliminary investigation of the same upon demand of the defendant 
at any time before trial, at which investigation the defendant shall have the 
right to cross examine the State's witnesses in person or by counsel, and to have 
the reply in argument if there be counsel for the State, and to be heard in argu- 
ment in person or by counsel as to whether a probable case has been made out 
and as to whether the case ought to be dismissed by the Magistrate and the de- 
fendant discharged without delay. And the defendant when first brought be- 
fore the Magistrate shall have the right to demand a removal of the hearing 
to the next Magistrate on the same ground as in cases within the jurisdiction 
of the Magistrate, and shall be granted two days, if requested, within which 
to prepare a showing for removal: Provided, the defendant be held by recog- 
nizance in bailable cases or committed for custody in the meantime : Pro- 
vided, further, That whenever any defendant or defendants shall demand, in 
writing, a preliminary hearing in shall be mandatory upon such Magistrate 
to grant said hearing, and the said case shall not be transmitted to the Court 
of General Sessions or submitted to the Grand Jury until a preliminary hearing 
shall have been had, the Magistrate to retain jurisdiction and the Court of 



251 Code of Criminal Procedure § 34 

General Sessions to not acquire jurisdiction until after such preliminary hear- 
ing : Provided, further, That the demand for such preliminary hearing shall 
be made at least ten (10) days before the convening of the next General Ses- 
sions Court thereafter. 

Cr. P. '22, § 32 ; Or. C. '12, § 33 ; Or. O. '02, § 24 ; 1898, XXII, 698 ; 1930, XXXVI, 1322. 

§ 34. Can Bind Over Witnesses. — Upon information made of the materiality 
of any witness within the State, to support any accusation made, or where the 
materiality of such witness shall be within the knowledge of any Magistrate, he 
shall issue his warrant, requiring such witness to appear before him or the next 
Magistrate, to enter into recognizance, with good security, if deemed proper, 
which warrant shall authorize the arrest and detention of any such witness in 
any county in the State, and on being brought before such Magistrate, and re- 
fusing to enter into recognizance, such witness may be committed by the said 
Magistrate; and the accused shall, in felonies, and no other case, have the like 
process to compel the attendance of any witness in his behalf as is granted or 
permitted on the part of the State : Provided, That no Magistrate shall receive 
any fees for issuing more than one warrant for witnesses on the part of the 
State, or upon the part of the accused, in the same case, unless on the second 
or other application, oath shall be made that the prosecutor or accused was not 
aware, at the issuing of the previous warrant, of the materiality of such witness. 

Cr. P. '22, § 33 ; Cr. C. '12, § 34 ; Cr. C. '02, § 25 ; G. S. 83.5 ; R. S. 24 ; 1830, XI, 22. 

§ 35. May Command the Peace. — Any Magistrate shall be authorized and 
required to command all persons who, in his view, may be engaged in riotous or 
disorderly conduct, to the disturbance of the peace, to desist therefrom and to 
arrest any such person who shall refuse obedience to his command, and to 
commit to jail any such person who shall fail to enter into sufficient recognizance 
either to keep the peace or to answer to an indictment, as the Magistrate may 
determine. In like manner he shall arrest and commit, if necessary, any person 
who, in his view, shall perpetrate any crime or misdemeanor whatsoever. In 
making any such arrest, the Magistrate shall have power to command any con- 
stable, bystander, or the posse comitatus, as the emergency may require; and 
any person who shall refuse to aid in such arrest, when required by the Magis- 
trate, shall be liable to indictment as for a misdemeanor. Whenever there shall 
be an indictment for any offense committed in his view, the Magistrate shall be 
the prosecutor, and he shall bind in recognizance all necessary witnesses. 

Cr. P. '22, § 34; Cr. C. '12, § 35; Cr. C. '02, § 26; G. S. 836; R. S. 25; 1830, XI, 21. 

§ 36. Bailing Persons Charged With Crime Not Punishable by Death or by 
Life Imprisonment. — Magistrates may admit to bail any person charged with 
any offense the punishment of which is other than death or imprisonment for 
life; and if any person under lawful arrest on a charge regularly made and 
not bailable be brought before a Magistrate he shall commit the prisoner to jail ; 
but if the offense charged be bailable, the Magistrate shall take recognizance, 
with sufficient surety, if the same be offered; in default whereof, such party 
shall be committed to prison, unless it shall clearly appear, upon examination, 
that the charge is not founded in probability ; in which case the party may be 
discharged, 

Cr. P. '22, § 35 ; Cr. C. '12, § 36 ; Cr. C. '02, § 28 ; G. S. 2621 ; R. S. 34 ; 1839, XI, 22. 

§ 37. Persons Charged Before Magistrates May Make Deposit in Lieu of 
Recognizance. — ^AU persons charged (and to be tried) before any Magistrate 
for any violation of law shall be entitled to deposit with said Magistrate, in 



§ 38 Code of Criminal Procedure 252 

lieu of entering into recognizance, a sum of money not to exceed the maximum 
fine in the case for which said person or persons are to be tried. 
Cr. P. '22, § 36; Cr. C. '12, § 37; 1904, XXIV, 388. 

§ 38. Scale of Recognizances — Witness and Prosecutors. — Recognizances 
entered into before a Magistrate shall be according to the following scale : 

(1) If the offense charged be punishable with fine and imprisonment, or 
either, the recognizance of the accused shall not be for less than two hundred 
dollars. In all cases the Magistrate taking the recognizance shall cause the same 
to be in such large amount as the circumstances may seem to require. 

(2) The recognizance of any prosecutor or witness, in case of misdemeanor, 

shall not be for less than one hundred dollars; and in case of capital felony, 

for not less than five hundred dollars; though in all cases the Magistrate shall 

cause the same to be in such large amount as the circumstances may seem to 

require. 

Cr. P. '22, § 37 ; Cr. C. '12, § 38 ; Cr. C. '02, § 29 ; G. S. 2622 ; R. S. 35 ; 1839, XI, 22 ; 
1885, XIX, 349. 

§ 39. Arrest and Committal of Witnesses on Refusal to Enter Into Recog- 
nizances. — Upon information made of the materiality of any witness within 
the State to support any accusation made, or where the materiality of such wit- 
ness shall be within the knowledge of any Magistrate, he shall issue his war- 
rant requiring such witness to appear before him or the next Magistrate to enter 
into recognizance, with good security, if deemed proper; which warrant shall 
authorize the arrest and detention of any such witness in any county in the 
State; and on being brought before such Magistrate, and refusing to enter into 
recognizance, such witness may be committed by the said Magistrate to the 
jail of the county, there to remain until he shall be regularly discharged, or 
shall enter into recognizance as required by this Chapter. 

Cr. P. '22, § 38; Cr. C. '12, § 39; Cr. C. '02, § 30; G. S. 2623; R. S. 36; 1839, XI, 22. 

§ 40. Magistrates to Return Papers to Clerk Ten Days Before Court. — All 

Magistrates before whom recognizances of witnesses, defendants, or prosecutor, 
for their respective appearances at any of the Courts of Sessions for this State 
shall be taken, or before whom any information or other paper returnable to 
the same shall be made, shall lodge the said recognizances, information, or other 
papers, in the respective Clerks' offices of the Courts to which they are return- 
able, at least ten days before the meeting of the said Courts, respectively. 

Cr. P. '22, § 39 ; Cr. C. '12, § 40 ; Cr. C. '02, § 31 ; G. S. 2624 ; R. S. 37 ; 1836, VI, 552 ; 
1839, XI, 23. 

§ 41. Time in Which Magistrates Must Return Papers, and Warrants to 
the Clerk of Court of General Sessions, and Make Full Report in Each Case. — 

All papers pertaining to the Court of General Sessions shall be returned, and a 
report of the case with the names and addresses of all material witnesses, to- 
gether with a synopsis of all testimony by each Magistrate to the Clerk of Court, 
within fifteen days after the arrest in each case has been made, and preliminary 
hearing had or waived, except such as may have been issued or received by him 
within fifteen days preceding the convening of any Court, and except in cases 
where preliminary hearings have been demanded and no opportunity had for 
said hearing ; in which case Magistrates shall return such papers and report 
thereon to the Clerk of Court, as directed in this Section, not later than the first 
day of said term. 

Cr. P. '22, § 40 ; Cr. C. '12, § 565 ; Cr. C. '02, § 408 ; G. S. 855, 856 ; R. S. 323 ; 1836, VI, 
552; 1839, XI, 23; 1918, XXX, 769. 



253 Code of Criminal Procedure § 42 

§ 42. Duty of Magistrate on Information of Impending Duel. — Whenever 
any Magistrate shall receive information in writing, and under oath, that any 
person or persons are about to leave this State, for the purpose of sending or 
receiving a challenge to fight a duel, or for the purpose of fighting a duel after 
such challenge shall have been sent or received, it shall be the duty of such 
Magistrate forthwith to- issue his warrant for the arrest of such person or per- 
sons, to be carried before some Magistrate who shall require such persons to enter 
into recognizance in such sum as to such Magistrate may seem meet, conditioned 
that such person or persons shall keep the peace within this State, and shall not 
leave the State for the purpose of sending or receiving a challenge to fight a 
duel, or for the purpose of fighting a duel after such challenge has been sent or 
received. 

Cr. P. '22, § 41 ; Cr. C. '12, § 41 ; Cr. C. '02, § 32 ; G. S. 838 ; R. S. 28 ; 1857, XII, 606. 

§ 43. Change of Venue. — Magistrates shall have the power to change the 
venue in all cases, civil and criminal, pending before them: Provided, That in 
counties where they have separate and exclusive territorial jurisdiction the 
change of venue shall be to another Magistrate's district in the same county. 
Whenever either party in a civil case, or the prosecutor or accused in a criminal 
case, which is to be tried before a Magistrate, shall file with the Magistrate is- 
suing the paper an affidavit to the effect that he does not believe he can obtain 
a fair trial before the Magistrate, the papers shall be turned over to the nearest 
Magistrate not disqualified from hearing said cause in the county, who shall 
proceed to try the case as if he had issued the papers : Provided, Such affidavit 
shall set forth the grounds of such belief, and in civil cases two days' notice of 
the application for change of venue shall be given to the adverse party. One 
such transfer only shall be allowed each party in any case. 

Cr. P. '22, § 42; Cr. C. '12, § 42; Cr. C. '02, § 33 ; R. 'S. 29; 1887, XIX, 787; 1896, 
XXII, 12. 

§ 44. May Break Open Gambling Doors. — Any Judge or Magistrate resid- 
ing in any incorporated city or town of this State, on information, by oath of 
any credible witness, that any of the criminal laws against gambling is being 
violated, is authorized to grant his warrant, under his hand and seal, to break 
open and enter any closed door or room within such city, wherever such offense 
or offenses are alleged to prevail. 

Cr. P. '22, § 43; Cr. C. '12, § 60, 708; Cr. C. '02, § 510; G. S. 1719; R. S. 395; 1816, 
VI, 28; 1904, XXIV, 500. 

§ 45. Prosecutor Not to Serve Warrant. — No Magistrate shall deputize the 
person swearing out a warrant in any case to serve the same. 

Cr. P. '22, § 45 ; Cr. C. '12, § 45 ; Cr. O. '02, § 35 ; R. S. 31 ; 1886, XIX, 531. 

§ 46. Magistrates May Issue Search Warrants. — (1) Magistrates shall have 
authority to issue warrants to make search or seizure in suspected places, and 
to arrest suspected persons and to seize their property. 

(2) Such warrants shall issue only in cases of stolen goods, and must be sup- 
ported by the oath or affirmation of the party applying for the same, which 
shall set forth fully and particularly all the facts upon which such applica- 
tion is based, and shall specially designate the suspected place or places, the 
object or objects of search or seizure, the name or names of the person or per- 
sons suspected and who are to be arrested : Provided, That in the investigation 
of supposed incendiary fires the Insurance Commissioner, or his deputy, shall 
have the right to search for property or goods supposed to have been moved 
from the building burned. 



§ 47 Code of Criminal Procedure 254 

(3) No such warrant shall issue except in the cases and with the formalities 
herein prescribed. 

Cr. P. '22, § 46 ; Cr. C. '12, § 46 ; Cr. 0. '02, § 36 ; R. S. 32 ; 1885, XIX, 251 ; 1912, XXVII, 
534. 

§ 47. Warrants to Be Endorsed in County Where Served — Execution. — 

Magistrates are authorized and empowered to endorse the warrant or warrants 
issued by Magistrates of other counties when the person or persons charged with 
a crime in said warrant or warrants resides, or is, in the county of said Magis- 
trate. "When a warrant or warrants is presented to a Magistrate for endorse- 
ment, as herein provided, the said Magistrate shall authorize the person present- 
ing the same, or any special constable, to execute the same within his county. 
Cr. P. '22, § 47 ; Cr. O. '12, § 47 ; Cr. C. '02, § 37 ; R. S. 33 ; 1891, XX, 1052. 

§ 48. Fines at Fairs of State Agricultural and Mechanical Society Trans- 
ferred to Treasurer Thereof. — For the purpose of better providing for the pres- 
ervation of the public peace during the annual fairs of the State Agricultural 
and Mechanical Society of South Carolina, all fines imposed for offenses com- 
mitted on the fair grounds during the sessions of the annual fairs shall be turned 
over to the treasurer of the said Society by the Magistrate before whom such 
cases are tried : Provided, That arrests of the offenders be made by persons ap- 
pointed or employed by the authorities of the said Agricultural and Mechanical 
Society of South Carolina. 

Cr. P. '22, § 48 ; Cr. C. '12, § 48 ; 1910, XXVI, 772. 



CHAPTER 3 

Criminal Proceedings in Municipal Courts 

49. Municipal Courts in Certain Cities. 60. Police. 

50. Jurisdiction. 61. Practice and Procedure. 

51. Incorrigible and Destitute Children. 62. Jury Lists. 

52. Recorder. 63. Refusing to Obey Jury Summons. 

53. Vacancy. 64^5. Appeal and Recognizance. 

54. Chief of Police. 66. Municipal Courts in Cities of not Less 

55. Jury Trials and Stenographer. Than Two Thousand. 

56. Municipal Court of Spartanburg. 67. Jurisdiction and Jury Trial. 

57. Jurisdiction. 68. Breaking Open Gambling Rooms. 

58. Judge. 69. Arrest and Committment. 

59. Vacancies. 70. Municipal Convicts. 

§ 49. Municipal Courts Established in Certain Cities. — ^A Municipal Court 
is hereby established for every city in this State having a population of more 
than twenty thousand and not exceeding fifty thousand inhabitants. 

Cr. p. '22, § 49 ; Cr. C. '12, § 49 ; 1902, XXIII, 1048. 

§ 50. Jurisdiction. — The said Municipal Court shall have jurisdiction to 
try and determine all cases arising under the ordinances of the city in which 
said Court is established, and generally shall have all such judicial powers 
and duties as are now conferred upon the Mayor of such city, either by its 
charter or by the laws of the State of South Carolina. The said Municipal 
Court shall also have all such powers, duties and jurisdiction in criminal cases 
as are now conferred by law upon the Magistrates appointed and commissioned 
for the county in which said Court is established, except that said Court shall 
not have the authority of a Magistrate to appoint a constable. 

Cr. P. '22, § 50 ; Cr. C. '12, § 50 ; 1902, XXIII, 1048. 

§ 51. Jurisdiction Over Incorrigible and Destitute Children Under the 
Age of Seventeen Years. — The said Municipal Court shall also have jurisdic- 



255 Code of Criminal Procedure § 51 

tion over and power to investigate the condition, circumstances and surround- 
ings of a child under seventeen years ol: age, within the jurisdiction of the 
Court, whenever it may be brought to the attention of such Courts upon an 
information, supported by affidavit that such child is homeless, destitute, neg- 
lected, incorrigible, constantly exposed to evil or corrupting influences, or that 
such child is a constant violator of State or municipal laws, or wherever it shall 
be made to appear by information as aforesaid that the home of such child, by 
reason of the gross immorality, depravity or criminality of the inmates of such 
home (whether such inmates be the parents, grandparents or guardians of such 
child), is not a proper place for the rearing of such child. That in making said 
investigation, the person holding such Court shall summon as witnesses the 
parents, grandparents, guardians or persons with whom said child resides, as 
well as all others, who, in the opinion of the person holding such Court, may 
have knowledge of the conditions and circumstances of such child, and also 
such persons as the said child or its parents, guardians or persons with whom 
it may reside may desire to have summoned : Provided, Such person or persons 
reside within the jurisdiction of the Court ; and shall examine all such persons, 
under oath, as to the condition and circumstances surrounding such child, the 
testimony of the witnesses to be reduced to writing, either stenographically or 
otherwise, and signed by the witnesses : Provided, That the decision of the Court 
be sent to the Clerk of the Court of Common Pleas of the county wherein said 
Municipal Court is situated, to be filed by him among the records of the Court 
of General Sessions : Provided, That in all cases where the salary of the person 
holding such Municipal Court shall have been fixed by the Mayor and Alder- 
men or City Council of said city, before the enactment of this amendment, the 
same may be so increased by the Mayor and Councilmen of said city as to com- 
pensate him for the additional services herein imposed upon him; during the 
making of such investigation the person holding such Court shall, upon the 
request of such child, or his or her parents, guardian or person with whom said 
child resides, submit the question of the advisability of committing said child 
to said reformatories to a jury of six, to be selected and empaneled as juries are 
now selected and empaneled in Magistrates' Courts: Provided, also. That said 
child shall have the right to appeal from the ruling or decision of such Court to 
the Judge of the Circuit in which such Municipal Court is established, or to the 
City Council of said municipality ; which appeal shall be heard upon the origi- 
nal papers, and if made to the Circuit Judge he may hear said appeal at Cham- 
bers or in open Court, but no appeal shall act as a supersedeas unless the Mayor 
or Circuit Judge shall so order. After hearing and determining the matter, the 
person holding such Court shall forthwith transmit the record of such case, the 
same to include the information, evidence and ruling, or when the evidence is 
taken by a sworn stenographer, the same need not be signed by the witnesses. 
If, after making such investigation, it shall appear to the person holding such 
Court that it would be conducive to the moral, physical and mental develop- 
ment of such child, the person holding such Court shall commit such child to 
the Keformatory, now located in Lexington County, or if white, to the South 
Carolina Industrial School, now located in Florence County, S. C, said child 
to be there detained during his minority, unless sooner released therefrom in the 
manner now provided by law : Provided, That if such child be a girl, the person 
holding such Court may commit her to such orphan asylum or other institution 
for the care of children in this State as in the opinion of the person holding 
such Court shall be a fit place for said child, or to such reformatory for girls 



§ 52 Code of Criminal Procedure 256 

as may hereafter be established by the State of South Carolina : Provided, That 
in continuance of such person in office, as to compensate him for the increased 
labor hereby imposed upon him, the Act entitled ' ' An Act to enlarge and define 
the duties and powers of the Probate Court in relation to minors," approved 
February 26, 1912, in so far as it applies to municipalities having a population 
of over twenty thousand and less than fifty thousand, is hereby repealed. 
Cr. P. '22, § 51 ; 1913, XXVIII, 62. 

§ 52. Recorder — Election, Term and Salary. — The Municipal Court hereby 
established shall be held by a Recorder, who shall be elected by the Mayor and 
Aldermen of the city in which said Court is established. The Recorder shall 
hold his office for a term of four years and until his successor is elected and 
qualified. The salary of the Recorder shall be fixed by the Mayor and Aldermen 
of such city, and shall not be increased or diminished during his continuance 
in office. Before entering upon the discharge of the duties of his office he shall 
take and subscribe the usual oath of office. 

Cr. P. '22, § 52 ; Cr. C. '12, § 51 ; 1902, XXIII, 1048. 

§ 53. Vacancy — How Filled. — In case of a vacancy in the office of Recorder, 
in any city, the Mayor and Aldermen of such city may elect a successor to fill 
the unexpired term. In case of the temporary absence, sickness or disability of 
the Recorder, the Municipal Court shall be held by the Mayor, the Mayor pro 
tempore, or by an Alderman selected by the City Council. 

Cr. P. '22, § 53 ; Cr. C. '12, § 52 ; 1902, XXIII, 1048. 

§ 54. Chief of Police to Attend, Etc.— It shall be the duty of the Chief of 
Police of the city in which said Municipal Court is established, to attend upon 
the sessions of said Court, and the said Chief of Police and the policemen of 
such city shall be subject to the orders of said Court, and shall execute the or- 
ders, writs and mandates thereof, and shall perform such other duties in con- 
nection with said Court as may be prescribed by the ordinances of such city or 
town. The said Chief of Police and policemen shall also be invested with the 
same powers and duties as are now or which may hereafter be devolved upon 
Magistrates' Constables. 

Cr. P. '22, § 54 ; Cr. C. '12, § 53 ; 1902, XXIII, 1048. 

§ 55. Jiiry Trials — Stenographer. — In the trial of any case in the said 
Municipal Court, upon the demand for a jury, the same shall be summoned and 
empaneled in accordance with the law for summoning and empaneling juries 
in Magistrates ' Courts, The jury shall consist of six. Any party shall have the 
right to have the testimony given at such trial taken stenographieally by a ste- 
nographer to be appointed by the Recorder : Provided, Such party shall first 
tender or pay the charges of such stenographer for taking and transcribing the 
same. 

Crim. Code, '12, § 54; 1902, XXIII, 1048. 

§ 56. Municipal Court in City of Spartanburg. — There is hereby estab- 
lished a Municipal Court in the City of Spartanburg, South Carolina. 
Cr. P. '22, § 49a ; 1920, XXXI, 827. 

§ 57. Jurisdiction as to Municipal Court of City of Spartanburg — Sen- 
tence — Court Room. — The Municipal Court of the City of Spartanburg shall 
have jurisdiction to try and determine all eases arising under the ordinances 
of the City of Spartanburg, and shall have all judicial powers and duties as are 
now conferred upon the Mayor of said city, either by its charter or by the laws 
of the State of South Carolina. 



257 Code of Criminal Procedure § 58 

"Whenever a person tried in said Municipal Court of the City of Spartanburg 
shall have been declared guilty of violating an ordinance of said City of Spar- 
tanburg, the Municipal Judge shall have power to impose a fine or imprison- 
ment, in the alternative, not to exceed the limits prescribed for such violation 
by the ordinances of said City of Spartanburg, not to exceed a fine of one hun- 
dred ($100.00) dollars, or imprisonment for not more than thirty days: Pro- 
vided, That the said Municipal Judge shall have the power and right to remit 
or suspend, at any time after conviction, and for reason appearing to the satis- 
faction of said Municipal Judge, any part of said fine or sentence. 

The said Municipal Court shall have the use of the City Hall of the City of 
Spartanburg for holding the sessions of said Municipal Court. 

Cr. P. '22, § 50a; 1920, XXXI, 827. 

§ 58. Judge of Municipal Court of City of Spartanburg. — The Municipal 
Court hereby established shall be held by a Judge, who shall be appointed by 
the Governor, upon the recommendation of a majority of the members of the 
City Council of the City of Spartanburg, and the Judge shall hold his office 
for a term of two years, and until his successor is duly appointed and qualified. 
That the salary of said Municipal Judge is fixed at the sum of nine hundred 
($900.00) dollars per annum, payable in equal monthly payments, out of the 
funds of said City of Spartanburg. That said salary shall not be increased or 
diminished during the continuance of said Judge in office. That before entering 
upon the duties of his office, the Municipal Judge shall take and subscribe the 
usual oath of office. 

Cr. p. '22, § 52a ; 1920, XXXI, 827 ; 1923, XXXIII, 850. 

§ 59. Vacancies as to Municipal Court in City of Spartanburg. — In case 
of a vacancy in the office of Municipal Judge of the City of Spartanburg, it shall 
be the duty of the Governor, upon the recommendation of a majority of the 
members of the City Council of the City of Spartanburg, to appoint a successor 
to fill the unexpired term : Provided, That in case of the absence from the State 
or temporarj^ disability of said Municipal Judge, a special Judge to fill said 
office temporarily may be appointed by the Governor, upon the recommendation 
of a majority of the members of the City Council of the City of Spartanburg. 

Cr. P. '22, § 53a ; 1920, XXXI, 827, 1923, XXXIII, 850. 

§ 60. Duties of Police in City of Spartanburg. — It shall be the duty of the 
Chief of Police of the City of Spartanburg to attend upon the sessions of said 
Court, and the said Chief of Police and the policemen of said City of Spartan- 
burg shall be subject to the orders of said Court, and shall execute the orders, 
writs and mandates thereof, and shall perform such other duties in connection 
with said Court as may be prescribed by the ordinances of said City of Spartan- 
burg. 

Cr. P. '22, § 54a; 1920, XXXI, 827. 

§ 61. Practice and Procedure. — That the general and statutory law ap- 
plicable to the Mayor 's Court shall apply in said Municipal Court of the City of 
Spartanburg, and the same rules of practice as obtained in relation to the May- 
or's Court shall likewise obtain in said Municipal Court; the laws, rules and 
practice regulating appeals from the proceedings, judgment and sentence of 
the Mayor's Court to the Court of General Sessions and to the Supreme Court 
shall apply in the Municipal Court. 

Cr. P. '22, § 54b ; 1920, XXXI, 827. 

§ 62. Jury Lists in Municipal Courts of Towns of Less Than 5,000 Inhabi- 
tants. — (1) The Mayor and Aldermen or Councilmen in any city or town in this 



§ 63 Code of Criminal Procedure 258 

State containing by the last census less than five thousand (5.000) inhabitants 
are hereby declared to be the Jury Commissioners of the Municipal Court of 
said city or town, and they shall, on or before the first day of May, 1918, and 
each year thereafter, prepare a box to be known as the ' ' jury box, ' ' which said 
box shall contain two apartments designated as A and B, respectively, and shall 
prepare and place, within said time, in apartment A of said box the names of 
not less than 75 per cent, of the qualified male electors of such city or town of 
good moral character and eligible to jury duty, the names to be placed in said 
box to be taken from Books of Registration preceding municipal electors, or 
from the name of male electors as shown on the County Registration Books, 
who have resided in said municipality for the period of four months, and after 
so placing such names in apartment A, the Mayor or presiding officer of said 
Court shall lock the box and keep the same in a place of safety. 

(2). In all criminal cases in such Court in which a jury may be demanded 
either by the city or town or the defendant, such jury shall be elected in the 
following manner : The presiding officer of said Court shall have drawn out of 
apartment A of the jury box referred to herein eighteen ballots, each contain- 
ing the name of an eligible juror and list the said eighteen names in duplicate, 
delivering one copy of the same to the attorney for the city or town and one 
copy to the attorney for the defendant. 

(3). The person appointed by the presiding officer shall place the eighteen bal- 
lots so drawn out in some box or hat and shall draw out one, and the person so 
drawn shall be one of the jury, unless challenged by either party, and the 
person appointed by the presiding officer shall then proceed until he shall have 
drawn six, who shall not have been challenged, neither party being allowed more 
than six challenges; but if the first twelve drawn shall be challenged and the 
parties do not agree to a choice, the last six shall be the jury, and when any of 
the six jurors so drawn cannot be found, or are disqualified by law to act in 
such case, and the parties do not supply the vacancy by agreement, the person 
appointed by the presiding officer shall proceed to draw out of the said jury 
box ballots for three times the number of those deficient, which shall be disposed 
of and be drawn as herein provided. 

(4). After a jury has been drawn in the manner herein provided, it shall be 
the duty of the presiding officer, or person appointed by him, to place all ballots 
so drawn out of apartment A of said box in apartment B thereof, and the same 
shall remain in said apartment until all the names have been exhausted in draw- 
ing juries from apartment A, at which time all the names in apartment B shall 
be returned to apartment A, and thereafter juries shall be continued to be 
drawn therefrom in the manner herein provided. 

1918, XXX, 794; 1923, XXXIII, 175; 1927, XXXV, 165. 

§ 63. Penalty for Refusing to Obey Jury Summons from Municipal Court. 

— If any juror, duly summoned, shall neglect or refuse to appear in obedience 
to any venire issued by any Police or Municipal Court, and shall not within 
forty-eight hours render to the Recorder or Magistrate holding such Police 
Court and issuing the venire, a sufficient reason for his delinquency, he shall 
forfeit and pay a fine of ten ($10.00) dollars to the treasury of the municipality 
where the cause is tried, to be assessed by such Recorder or such Magistrate so 
holding the Police Court and collected on his warrant without other process, 
and a failure to pay forthwith such fine so assessed shall constitute a contempt 
of Court and be punished accordingly. 

Cr. P. '22, § 56; Or. O. '12, § 55; 1907, XXV, 609. 



259 Code of Criminal Procedure § 64 

§ 64. Appeal — ^Recognizance. — Any party shall have the right to appeal 
from the sentence or judgment of the Recorder to the City Council of the city, 
of the Court of General Sessions of the county in which the trial is held : Provided, 
Jwivever, Notice of intention so to appeal be given in writing and served on the 
Recorder within twenty-four hours after sentence is passed or judgment ren- 
dered, and the party appealing do enter into bond, payable to such city, to 
appear and defend such appeal at the next meeting of the City Council of such 
city, or the next term of said Court of General Sessions, as the appeal may be 
taken, in such amount and with such sureties as the Recorder may determine. 

Cr. P. '22, § 57 ; Or. C. '12, § 56 ; 1902, XXIII, 1048. 

§ 65. Return on Appeal — Contents — Hearing in General Sessions. — In the 

event of an appeal to the Recorder shall make a return to the tribunal to which 
the appeal is taken, and the appeal shall be heard by the City Council, or pre- 
siding Judge, as the case may be, upon such return. The return of the Recorder 
shall consist of a written report of the charges preferred, the testimony, the 
proceedings and the sentence or judgment, and where the testimony has been 
taken by a stenographer as herein provided, shall embrace the stenographer's 
report of the testimony. If the appeal is taken to the Court of General Sessions 
said return shall be filed with the Clerk of the Court of General Sessions of the 
county in which the trial is had, and the cause shall be docketed for trial in the 
same manner as is now provided in cases of appeals from Magistrates' Courts. 
Cr. P. '22, § 58 ; Cr. C. '12, § 57 ; 1902, XXIII, 1048. 

§ 66. Municipal Courts Authorized in Cities of Not Less Than Two Thou- 
sand — Jurisdiction. — It shall be lawful for the City Council of any city in this 
State, whose population by the last census was not less than two thousand, and 
not more than twenty thousand, or which may now or hereafter, by actual enu- 
meration have a population within said limits, by ordinance duly enacted, to 
establish in said city a Municipal Court, for the trial and determination of all 
cases arising under the ordinances of such city. 

Every Municipal Court established under the authority of this Section shall 
be vested with all the powers and jurisdiction, and be held and conducted in the 
same manner, and be subject to all the terms and provisions which are created, 
expressed and declared in and by Sections 49 to 55 and 63 to QQ, inclusive. 

Cr. P. '22, § 59 ; Cr. C. '12, § 58 ; 1904, XXIV, 397 ; 1905, XXIV, 911. 

§ 67. Jurisdiction of Municipal Courts — Right of Trial by Jury. — (1). 

The Intendants or Mayors of the cities and towns of this State that have been 
heretofore chartered or that may be hereafter chartered by special Act of the 
General Assembly, or under general laws, shall have all the powers and author- 
ity of Magistrates in criminal cases within the corporate limits and police juris- 
diction of their respective cities and towns, and shall especially have the power 
and authority to speedily try all offenders against the ordinances or laws of 
said town in a summary manner and without a jury, unless demanded by the 
accused; and the Mayor or Intendant pro tempore shall have the same powers. 
When the accused shall demand a jury, the same shall be drawn from the quali- 
fied electors of the town or city in the same manner as is provided for drawing 
of juries in the Courts of Magistrates. The Chief of Police or Marshal of the 
town, or such officer as the Mayor, Intendant or Mayor pro tempore may ap- 
point, shall act as Constable to prepare the jury list; and the complainant, or 
some officer to be designated by the Mayor, Intendant or Mayor pro tempore, 
is authorized to make the challenges allowed on the part of the prosecution. 



§ 67 Code op Criminal Peocedure 260 

(2) Intend ANTS Have Power to Compel Attendance of Witnesses. — 
Such Intendants or Mayors or City or Town Councils have the same power 
which a Magistrate now has to compel the attendance of witnesses and require 
them to give evidence upon the trial before them of any person for the violation 
of the laws or the ordinances of the town. 

(3) Punishments by Municipal Courts. — Whenever said Mayor, Intend- 
ant or Mayor pro tempore shall find the party tried before him guilty of viola- 
ting an ordinance of said town, he shall have power to impose, in his discretion, 
a fine, or imprisonment in the alternative, not to exceed the limits prescribed 
for such violation by the ordinances of said city or town, not to exceed a fine in 
the sum of one hundred dollars, or imprisonment for not more than thirty days, 
and shall appropriate all revenues arising therefrom to the use of the said cor- 
poration: Provided, Such ordinances, rules and by-laws or regulations be not 
contrary to the laws of the State. Every person sentenced to imprisonment, 
either directly or in consequence of a failure to pay a fine imposed, shall be sub- 
ject to work upon the public roads or streets of said city or town, or of the 
county in which such city or town is situate, during the term of such imprison- 
ment. 

(4) Issuance of Execution to Sheriffs for Collection of Fines. — The 
said Mayors, Intendants or City or Town Councils shall have power to issue 
execution to the Sheriff of the county for the collection of all fines imposed 
by it. 

(5) Right of Appeal to Full Council. — From all decisions of such Mayor, 
Intendant or Mayor pro tempore any defendant, feeling himself or herself ag- 
grieved, shall have the right to appeal to the City or Town Council, provided 
he give notice of such appeal within twenty-four hours after sentence has been 
passed, and to enter into bond to appear and defend before said Council at a 
time to be specified in such undertaking, and to abide the sentences of the City 
or Town Council : Provided, That in those cities of over five thousand inhabi- 
tants, incorporated under Article 5 of Chapter 57 of the Civil Code, the appel- 
lant may pay the fine imposed under protest and appeal to the City Council 
without giving bond. At the trial of such appeal the Mayor, Intendant, or 
Mayor pro tempore, shall preside and the Aldermen shall sit as a Court, and a 
concurrence of a majority of the Aldermen present shall be necessary for the 
reversal of the judgment of the Mayor, Intendant, or Mayor pro tempore; but 
if the Aldermen present shall divide equally in opinion, the judgment of the 
Mayor, Intendant, or Mayor pro tempore, shall be affirmed. They may reverse, 
modify or confirm any or all rulings or conclusions of the Mayor, Intendant, 
or Mayor pro tempore, made or reached in the first trial of the case. 

(6) Right of Appeal to Court of General Sessions. — From all the deci- 
sions of said Mayor, Intendant, or Mayor pro tempore, or City or Town Council, 
any party in interest, feeling himself or herself aggrieved, shall have the right 
of appeal to the Court of General Sessions for the county in which the trial is had : 
Provided, however. That he must give notice of such appeal in writing within 
twenty-four hours after the sentence has been passed and enter into bond to 
appear and defend before said Court at its next ensuing session thereafter: 
Provided, That in those cities of over five thousand inhabitants, incorporated 
under Article 5 of Chapter 57 of the Civil Code, in all cases the person 
convicted shall have the right of appeal to the Court of General Sessions 
within five days from time of sentence. Such appeal may be taken either from 
the sentence of the Mayor or from the sentence of the City Council; but the 



261 Code of Criminal Procedure § 68 

appeal shall not operate to stay the execution of the sentence unless the appel- 
lant give bond, to be approved by the Mayor, conditioned to abide the judg- 
ment of the Court of General Sessions. Said appeal in said Court of General 
Sessions shall be heard upon the report of the presiding officer of the trial below, 
and upon the testimony reported by him. The provisions of this Section shall 
not apply to the City of Charleston. 

Cr P '22, § 60; Cr. C. '12, § 59; Civil Code, '02, §§ 2924-2939; 1896, XX, 77; 1897, 
XXII ; 498, 1901, XXIII, 651 ; 1908, XXV, 1029. 

§ 68. Municipal OflBcers May Break Open Gambling Rooms. — The Mayor 
or any of the Aldermen or the Sheriff of the City of Charleston, or the Mayor 
or Intendent or any Alderman, Warden or Recorder, of any incorporated city 
or town of this State, on information, by oath of any credible witness, that any 
of the criminal laws against gambling is being violated, is authorized to grant 
his warrant, under his hand and seal, to break open and enter any closed door 
or room within such city or town, wherever such offense or offenses are alleged 
to prevail. 

Cr. P. '22, § 61; Cr. C. '12, §§ 60, 708; Cr. C. '02, 510; G. S. 1719; R. S. 395; 1816, VI, 
28; 1904, XXIV, 500. 

§ 69. Municipal Officers' Power to Arrest, and on Conviction to Commit 
to Guardhouse. — (1) The said Mayors or Intendants or City or Town Councils 
shall have power to arrest and, upon conviction, to commit to the town guard- 
house, for a space of time not exceeding thirty days, and to fine not exceeding 
one hundred dollars, any person or persons who may be guilty of disorderly 
conduct in said town to the annoyance of the citizens thereof ; and it shall be 
the duty of the Marshal or Police Officer of the town to make such arrest, 
and to call to his assistance the posse comitatus, if necessary, and upon failure 
to perform the said duty he shall be fined in a sum not exceeding one hundred 
dollars for each and every offense. 

Cr. P. '22, § 62 ; 1897, XXII, 501 ; Civil Code, '02, § 2908. 

(2) Powers of Marshals or Constables. — The said Mayors or Intendants 
and Aldermen, Councilmen or Wardens, in persons, or any of them, may author- 
ize and require any Marshal or Constable especially appointed for that purpose 
to arrest, and upon conviction before the Mayors or Intendants or City or 
Town or Town Council to commit to the guardhouse which said Mayors or 
Intendants or City or To\vn Council is authorized to establish or to the county 
jail or to the county chaingang, for a term not exceeding thirty days, any 
person or persons who, within the corporate limits of said town, may be en- 
gaged in a breach of the peace, any riotous or disorderly conduct, open ob- 
scenity, public drunkenness, or any conduct grossly indecent or dangerous to 
the citizens of said city or town, or any of them : Provided, That if the offender 
be committed to jail it .shall be done at the expense of the said city or town : 
Provided, This Section shall not be construed to prevent trial by jury. 

Cr. P. '22, § 62 ; Cr. C. '12, § 61 ; Civil Code, '02, § 2909. 

§ 70. Municipal Convicts — Proviso as to Time — Exchange of Convict 

Labor. — Whenever any town or municipal authority in this State have not a 
sufficient number of convicts sentenced to work on the public works of the 
town to warrant the expense of maintaining a town chaingang, the town au- 
thorities of said town shall be authorized to place said convicts on the county 
chaingang for the time so sentenced, and the county authorities of the county 
in which said town is situated shall be authorized and empowered to exchange 
labor with said town authorities and place county convicts on the public 



§ 71 Code of Criminal Procedure 262 

works of the town for the same number of days that town convicts work on 
the public works of the county, 

Cr. P. '22, § 63 ; Cr. O. '12, § 944 ; Cr. C. '02, § 658 ; 1898, XXII, 821. 



CHAPTER 4 
Proceedings in Courts of General Sessions 

71-5. Grand Juries. 82. Opening and Publication of Sealed Sen- 

76. Person Indicted Entitled to Copy. tence. 

77-8. Right of Counsel. 83. Indictment of Public Officer. 

79. No Continuance on Traverse of Indict- 84. Stenographer for General Sessions of 
ment. Fifth Circuit. 

80. Empaneling of Jurors. 85. Stenographer for General Sessions of 

81. Defendant's Witnesses. Seventh Circuit. 

86. Jurisdiction of Circuit Courts. 

§ 71. How Grand Juries Drawn — Six Drawn Each Year for the Next 
Year. — The Clerk of the Court of General Sessions in each county, not less 
than fifteen days before the commencement of the first term of the Court in 
each year, shall issue writs venire facias in each county for twelve grand jurors 
to be returned to that Court, who, together with the six grand jurors for whose 
selection provision has hereinbefore been made, shall be held to serve at each 
term thereof throughout said year, and until another Grand Jury is selected 
and impaneled. During the last term of the Court of General Sessions held in 
each county for such year, six of the grand jurors then in service shall be 
drawn as hereinafter provided, who, together with twelve grand jurors se- 
lected in the manner herein prescribed, shall constitute the Grand Jury for 
such year : Provided, That no person shall serve as a grand juror for more than 
two consecutive years, 

Cr. p. '22, § 64 ; Cr. C. '12, § 62 ; Cr. 0. '02, § 38, Subdivisions b, c ; 1901, XXIII, 634 ; 
1903, XXIV, 108. 

§ 72. Drawing of Grand Jurors Under Extraordinary Circumstances. — 

Whenever for any cause, such as the quashing of the array or there being no 
Court at the fall term, there has heretofore been or shall hereafter be a failure 
to draw the names of six members of the Grand Jury for any county to serve 
on the Grand Jury for the county for the ensuing year as required by law, 
there shall be drawn, at the proper time for drawing the Grand Jury, eighteen 
names from the jury box, instead of twelve, and the said eighteen persons, 
whose names are so drawn, shall be summoned and shall serve as the Grand 
Jury for the year in question, and shall be the lawful Grand Jury for such 
county for that year, and until their successors be drawn, summoned and 
qualified according to law. 

Cr. P. '22, § 65 ; Cr. C. '12, § 63 ; Cr. 0. '02, § 38, Subdivision d ; 1903, XXIV, 108. 

§ 73. Drawing Grand Jurors by Clerk to Hold Over. — When the Judge 
entitled to preside fails to attend and to hold the fall or last term of the Court 
of Common Pleas and General Sessions for any county, the Clerk of the Court 
shall have the right, and is required hereby, to make the drawing from the out- 
going Grand Jury, that is to say, from the Grand Jury for the then current 
year, of the names of the six members who shall serve as a part of the Grand 
Jury for the then ensuing year, with the same force and effect as if the names 
of the said six grand jurors had been drawn in the presence of the presiding 
Judge. 

Cr. P. '22, § 66; Cr. C. '12, § 64; Cr. C. '02, § 38, Subdivision e; 1903, XXIV, 108. 



263 Code of Criminal Procedure § 74 

§ 74. Who to Be Grand Jurors and Who Jurors for Trials. — Grand jurors 
shall be drawn, summoned and returned in the same manner as jurors for trials, 
and when drawn at the same time as jurors for trials, the persons whose names 
are first drawn, to the number required, shall be returned as grand jurors, and 
those afterwards drawn, to the number required, shall be jurors for trials. 

Cr. P. '22, § 67 ; Cr. 0. '12, § 65 ; Cr. O. '02, § 39 ; G. S. 2630 ; R. S. 39 ; 1871, XIV, 694. 

§ 75. Foreman of Grand Jury to Swear Witnesses. — Hereafter the fore- 
man of the Grand Jury or acting foreman in the Circuit Courts of any county 
of the State shall have the authority and power to swear witnesses, whose names 
shall appear on the bill of indictment, in the Grand Jury room: Provided, That 
the provisions of this Section shall not apply to Berkeley, Sumter, Newberry, 
Bamberg, Barnwell, Pickens, Colleton, Anderson, Lee, Hampton, Lexington, 
Aiken, Richland, Greenwood, Kershaw, Georgetown, Marion, Saluda and Abbe- 
ville Counties : Provided, however, That no witnesses shall be sworn except those 
who have been bound over or subpoenaed in the manner now provided by law. 

Cr. p. '22, § 68 ; 1913, XXVIII, 139 ; 1914, XXVIII, 577 ; 1916, XXIX, 819 ; 1917, XXX, 
147, 1930, XXXVI, 1183. 

§ 76. Persons Indicted for Capital Offenses to Have Copy of Their Indict- 
ment. — Whoever shall be accused and indicted for any capital offense whatso- 
ever shall have a true copy of the whole indictment, but not the names of the 
witnesses, delivered to him, three days, at least before he shall be tried for the 
same, whereby to enable him to advise with counsel thereupon, his attorney or 
attorneys, agent or agents, or any of them requiring the same, and paying the 
officer his usual fees for the copy of every such indictment. 

Cr. P. '22, § 69 ; Cr. C. '12, § 66 ; Cr. C. '02, § 40 ; G. S. 2632 ; R. S. 40 ; 1731, III, 286. 

§ 77. May Have Counsel. — Every such person so accused and indicted, ar- 
rainged or tried, for any capital offense, shall be received and admitted to 
make his full defense by counsel learned in the law and to make any proof that 
he can by lawful witness or witnesses, who shall then be upon oath, for his 
defense in that behalf. 

Cr. P. '22, § 70 ; Cr. C. '12, § 67 ; Cr. C. '02, § 41 ; G. S. 2633 ; R. S. 41 ; 1731, III, 286. 

§ 78. Court May Assign Counsel. — In case any person so accused or in- 
dicted shall desire counsel, the Court before whom such person shall be tried 
is authorized and required, immediately upon his request, to assign to such per- 
son such and so many counsel, not exceeding two, as the person shall desire, to 
whom such counsel shall have free access, at all seasonable times, either before, at, 
or after the said trial, any law or usage to the contrary notwithstanding. 

Cr. P. '22, § 71 ; Cr. C. '12, § 68 ; Cr. C. '02, § 42 ; G. S. 2634 ; R. S. 42 ; 1731, III, 286. 

§ 79. Traverse of Indictment Not a Continuance. — A traverse of any in- 
dictment shall not, in any Court of criminal jurisdiction in this State, of itself, 
operate to continue the case. 

Cr. P. '22 § 72 ; Cr. C. '12, § 69 ; Cr. C. '02, § 43 ; G. S. 2635 ; R. S. 43 ; 1871, XIV, 534. 

§ 80. Juries to Be Impaneled, Etc., in Each Case. — In impaneling juries in 
criminal cases, the jurors shall be called, sworn, and impaneled anew for the trial 
of each case, according to the established practice, and their foreman shall be 
appointed by the Court or by the jury when they retire to consider their verdict. 

Cr. P. '22, § 73 ; Cr. C. '12, § 70 ; Cr. C. '02, § 44 ; G. S. 2636 ; R. S. 44 ; 1871, XIV, 692. 

§ 81. Pay of Defendant's Witnesses in Criminal Cases — Process to Compel 
Attendance. — In all criminal prosecutions the accused shall have compulsory 
process for obtaining witnesses in his favor ; and in felonies, and no other cases, 



§ 82 Code of Criminal Procedure 264 

such witnesses shall receive the same pay as the State 's witnesses upon the certif- 
icate of the trial Judge that the testimony of such witness was material to the 
defense : Provided, That the compulsory process hereinabove mentioned shall be 
in misdemeanors a subpoena under the official signature of the Clerk of the Court, 
or other judicial officer, which subpoena or copy shall be served upon the witness 
a reasonable time before such witness is required to attend Court, and for any 
disobedience to such subpoena the Court may punish for contempt. 

Cr. P. '22, § 74 ; Cr. C. '12, § 71 ; Cr. C. '02, § 45 ; G. S. 2638 ; R. S. 45 ; 1731, III, 286 ; 
1839, XI, 23; 1896, XXII, 102. 

§ 82. Clerk of Court Required to Open and Publish Sealed Sentences. — 

Upon the arrest of a party for whom there is a sealed sentence, the Sheriff shall 
forthwith carry the prisoner before the Clerk of Court, who shall, in the presence 
of the prisoner and the attorney of record, if there be one, open and publish said 
sentence, and it shall at once be enforced unless stayed by appeal. 
Cr. P. '22, § 75 ; Cr. C. '12, § 72 ; 1910, XXVI, 587, 762 ; 1911, XXVII, 135. 

§ 83. Duty of Presiding Judge When Officer is Indicted, Etc.— It shall be 
the duty of the presiding Judge before whom any public officer as described in 
Section 484 of the Criminal Code, shall be tried, to cause a certified copy of the 
indictment to be immediately transmitted to the Governor, who shall upon re- 
ceipt thereof declare by proclamation his office vacant, and the same shall be filled 
as in the case of death or resignation of the incumbent. And whenever it shall 
be brought to the notice of the Governor by affidavit that any officer who has 
the custody of public or trust funds is probably guiltj^ of embezzlement, or the 
appropriation of public or trust funds to private use, then the Governor shall 
direct his immediate prosecution by the proper officer, and, upon true bill found, 
the Governor shall suspend such officer and appoint one in his stead until he 
shall have been acquitted by the verdict of a jury. In case of conviction the 
office shall be declared vacant and the. vacancy filled as may be provided by law. 

Cr. p. '22, § 76; Cr. C. '12, 546; Cr. C. '02, 389; G. S. 2556; R. 'S. 306; 1896, XXII, 312. 

§ 84. Appointment of a Stenographer for Courts of General Sessions of 
Fifth Circuit — Compensation. — The resident Circuit Judge of the Fifth Ju- 
dicial Circuit is hereby authorized to appoint some competent stenographer who 
shall be the regular official stenographer for the Courts of General Sessions 
for the Fifth Judicial Circuit, who shall receive as compensation for his serv- 
ices the sum of six hundred ($600.00) dollars per annum, three hundred of 
which shall be payable monthly upon the warrant of the Comptroller General 
in the same manner as now provided for the payment of the salaries of other 
State officers, and three hundred of which shall be paid by the Counties of 
Richland and Kershaw, the former two hundred and the latter one hundred dol- 
lars: Provided, That the said stenographer shall also be entitled to receive the 
fees now fixed by law for all transcripts furnished by him : Provided, further, 
That should the Judge of the said circuit, for any reason satisfactory to him- 
self, find it to the best interests of the circuit to designate the regular circuit 
stenographer of said circuit, appointed pursuant to the provisions of the Code 
of Civil Procedure, to act also as stenographer for the General Sessions Court, 
that during the time the said circuit stenographer performs such duties in the 
Court of General Sessions he shall be entitled to the salary provided herein, 
in addition to his salary as circuit stenographer, and the fees incident to such 
position; and that the salary appropriated by the State shall be paid by the 
Comptroller General upon the order of the Circuit Judge designating the said 
circuit stenographer for the time he is so designated. 

Cr. p. '22, § 77 ; 1915, XXIX, 175 ; 1919, XXXI, 18. 



265 Code of Criminal Procedure § 85 

§ 85. Court Stenographer for Court of General Sessions in Seventh Circuit 
— Salary — By Whom Paid. — The resident Circuit Judge of the Seventh Judi- 
cial Circuit is hereby authorized to appoint some competent stenographer for the 
Courts of General Sessions for the Seventh Judicial Circuit, who shall receive 
as compensation for his services the sum of eight hundred dollars per annum, two 
hundred and sixty-six and 66-100 dollars of which shall be paid monthly upon 
the warrant of the Comptroller General in the same manner as now provided for 
the payment of the salaries of the other State officers, and two hundred and sixty- 
six and 66-100 dollars of which shall be paid monthly by the County of Spartan- 
burg, one hundred and thirty-three and 33-100 dollars of which shall be paid by 
the County of Union, and one hundred and thirty-three and 33-100 dollars of 
which shall be paid by the County of Cherokee : Provided, That the Stenogra- 
pher shall also be entitled to receive the fees now fixed by law for all transcripts 
furnished by him : Provided, further. That when the Stenographer of the Court 
of Common Pleas does not furnish transcripts as promptly as required by law 
and otherwise perform his duties, then the Stenographer of the Court of General 
Sessions shall at once perform the duties of the Stenographer of the Court of 
Common Pleas until the said Stenographer shall have furnished all transcripts 
required; and the Stenographer of the Court of General Sessions shall receive 
the compensation and fees of the Stenographer of the Court of Common Pleas 
while performing the duties as aforesaid. 

Cr. P. '22, § 78 ; 1917, XXX, 137 ; 1919, XXXI, 186. 

§ 86. Jurisdiction of Circuit Courts. — The Circuit Courts of this State, 
within their respective Circuits, in the counties of which the Circuits are respect- 
ively composed, shall have cognizance of all offenses committed against the pro- 
visions of Sections 322 to 325, inclusive, of Criminal Code. 

Cr. P. '22, § 79 ; Cr. C. '12, § 330 ; Cr. C. '02, § 243 ; G. S. 2577 ; R. S. 208 ; 1871, XIV, 566. 



CHAPTER 5 
Procedure Against Corporations 

87. Procedure in General. 89. Court of General Sessions. 

88. Magistrates' Courts. 90. Appeal. 

§ 87. Procedure in Cases Against Corporations for Violating Criminal Laws. 

— Whenever any corporation doing business in this State, whether incorporated 
under the laws of this State or not, shall be charged in any Court of competent 
jurisdiction with the violation of any of the criminal laws of the State apper- 
taining to corporations, the Court in which such prosecution originates shall ob- 
tain and have jurisdiction of such offending corporation in the following man- 
ner, to wit: If the offense charged be within the jurisdiction of the Magistrates' 
Courts in this State, it shall be that whenever any person shall make an affidavit 
before any Magistrate that such corporation has violated any of the criminal 
laws of this State in any matter now provided for by law, or that hereafter be 
provided for by law, it shall be the duty of such Magistrate to issue a warrant 
against such offending corporation in which shall be stated the substance of 
the offense charged against such corporation, together with a notice to such 
corporation stating the time and place and when and where such corporation 
must or shall appear for trial; and in such case, a copy of the warrant shall 
be served upon such corporation in the manner now provided by law for the 
service of process in civil actions. And when there is no agent or officer of the 



§ 88 Code of Ceiminal Procedure 266 

company, the service shall be made upon such person as is in charge of the 
property of the said corporation, and if no such person can be found, it shall be 
served upon the Secretary of State, who shall transmit a copy of the same by 
mail to the last known residence of the managing officer of said corporation, 
directed to said officer : Provided, That no criminal proceeding shall be instituted 
against any corporation unless the offense charged, or some part thereof, shall 
have been committed in the county where the prosecution shall be instituted: 
And provided, further, That in the case of a foreign corporation, it shall be 
necessary that such corporation have an agent or other officer within the coun- 
ty upon whom such process may be served in accordance with the provisions 
in civil actions ; but if such foreign corporation have no agent or other officer 
within the county where the offense, or some part thereof, has been committed, 
then process shall be served on the person appointed by such corporation to 
receive service of process as now required by law regulating foreign corpora- 
tions, or upon the Insurance Commissioner in cases when by law service of 
process in civil actions may be made upon the Insurance Commissioner, and 
such service shall be made in the same manner provided by law for service of 
summons in civil actions against such corporations. 
Civ. C. '22, § 4297; Civ. '12, § 2830; 1911, XXVII, 39. 

§ 88. In Magistrate's Court. — If such corporation shall appear, or shall 
fail to appear, after such service, the Magistrate shall proceed with the trial as 
in criminal cases, and if such defendant corporation shall be found guilty of 
the offense charged whether by a verdict of a jury or by the findings of the 
Magistrate in case a trial by jury be waived by the party or parties appearing, 
the Magistrate shall pronounce sentence in conformity with the law in such 
case, and such sentence may be enforced by an execution against the property 
of such defendant corporation in the same manner as now provided by law 
for enforcing the judgments of Magistrates' Courts: Provided, That nothing 
herein shall be construed to prevent the right of appeal by either party to the 
Court of General Sessions, as is now provided by law in criminal cases within 
the jurisdiction of Magistrates. 

Civ. C. '22, § 4298 ; Civ. '12, § 2831 ; 1911, XXVII, 41. 

§ 89. In Court of General Sessions. — ^If the offense charged against such 
corporation be cognizable by the Courts of General Sessions, the Solicitor shall 
hand out a bill of indictment to the Grand Jury of the county in which such 
offense, or some part thereof, has been committed, and if the Grand Jury shall 
return a true bill, the Solicitor shall cause a copy of such indictment to be 
served on such corporation offending or upon such of its officers or agents as is 
now provided by law for the service of process in civil actions, and in the man- 
ner indicated in the preceding Section, together with a notice to such corpora- 
tion of the term of the Court of General Sessions in which «uch case will be 
tried; and the sentence and judgment of the Court of General Sessions shall 
be enforced in the same manner by execution against the property of the de- 
fendant as is now provided by law for enforcing the judgments of the Courts 
of Common Pleas in civil actions. 

Civ. C. '22, § 4299; Civ. '12, § 2832; 1911, XXVII, 41. 

§ 90. Appeal. — In all cases the right of appeal shall be preserved, and the 
procedure therein shall be the same as is now provided by law in appeals in 
criminal cases, whether in the Magistrates' Courts or in the Courts of General 
Sessions. 

Civ. C. '22, § 4300; Civ. '12, § 2833; 1911, XXVII, 41. 



267 Code of Criminal Procedure § 91 

CHAPTER 6 

Rights of Persons Accused 

91. Information as to Grounds of Arrest. 94. Counsel and Witnesses. 

92. Double Jeopardy in Multiplication of 95. Methods of Conviction. 
Charges. 96. Arraignment on New Indictment. 

93. Offenses Prosecuted by Indictment. 97. No Punishment Until Legally Convicted. 

§ 91. Right to Be Informed of Ground of Arrest, Etc.— Penalty.— Every 

person arrested by virtue of process, or taken into custody by an officer in this 
State, has a right to know, from the officer who arrests or claims to detain him, 
the true ground on which the arrest is made; and an officer who refuses to 
answer a question relative to the reason for such arrest, or answers such ques- 
tion untruly, or assigns to the person arrested an untrue reason for the arrest, 
or neglects on request, to exhibit to the person arrested, or any other person 
acting in his behalf, the precepts by virtue of which such arrest is made, shall 
be punished as for a misdemeanor. 

Cr. P. '22, § 80 ; Cr. C. '12, § 74 ; Cr. C. '02, § 47 ; G. S. 2447 ; R. S. 46. 

§ 92. Double Jeopardy and Multiplication of Charges. — Whenever a Mu- 
nicipal Court or a Magistrate's Court shall have acquired jurisdiction by rea- 
son of a person or persons committing an act which is alleged to be in violation 
of a municipal ordinance and which is in violation of the Criminal Law of 
South Carolina, that a conviction or an acquittal by the first Court acquiring 
jurisdiction shall be a complete bar to a trial by another Court for the same 
alleged unlawful act or acts : Provided, however, That this shall have no appli- 
cation to violations of the prohibition law. 

Whenever a person or persons be accused of committing an act which is 
susceptible of being designated as several different offenses, the Magistrate or 
the Municipal Court upon the trial of the said person or persons shall be re- 
quired to elect which charge to prefer, and a conviction or an acquittal upon 
such elected charge shall be a complete bar to further prosecution for said 
alleged offense. 

Whenever a person or persons shall have been convicted in a Municipal Court 
or a Magistrate's Court, such person or persons shall have the right, upon peti- 
tion, to obtain from any Circuit Judge or Justice of the Supreme Court at 
Chambers or in open Court, a writ of certiorari requiring such Municipal Court 
or Magistrate to certify the entire records of the case together with a copy of 
the municipal ordinance, or a reference to the Criminal Code as to the statute 
involved, as the case may be, and including the rulings, findings, and sentences, 
returnable at such time as such Circuit Judge or Justice of the Supreme Court 
may direct, and upon the hearing of the writ such Circuit Judge or Justice of 
the Supreme Court shall have same jurisdiction of the entire matter as Circuit 
Judges now have in cases appealed from Municipal Courts or Magistrate's 
Courts. 

1928, XXXV, 1317. 

§ 93. Offenses to Be Prosecuted by Indictment, Except When Information 
is Authorized. — No person shall be held to answer in any Court for an alleged 
crime or offense, unless upon indictment by a grand jury, except in the follow- 
ing cases : 

(1) When a prosecution by information is expressly authorized by statute. 

(2) In proceedings before a Police Court or Magistrate; and. 



§ 94 Code of Criminal Procedure 268 

(3) In proceedings before Courts martial. 

Cr. P. '22, § 81 ; Cr. C. '12, § 75 ; Cr. 0. '02, § 48 ; G. S. 2448 ; R. S. 47. 

§ 94. Party Accused May Have Counsel, Witnesses, Etc. — The accused 
shall, at his trial, be allowed to be heard by counsel, may defend himself, and 
shall have a right to produce witnesses and proofs in his favor, and to meet the 
witnesses produced against him face to face. 

Cr. P. '22, § 82 ; Cr. C. '12, § 76 ; Cr. C. '02, § 49 ; G. S. 2449 ; R. S. 48. 

§ 95. Persons Indicted — How Convicted. — No person indicted for an of- 
fense shall be convicted thereof, unless by confession of his guilt in open Court, 
or by admitting the truth of the charge against him by his plea or demurrer, or 
by the verdict of a jury accepted and recorded by the Court. 

Cr. P. '22, § 83 ; Cr. C. '12. § 77 ; Cr. C. '02, § 50 ; G. S. 2450 ; R. S. 49. 

§ 96. Arraignment on New Indictment. — If a person, on his trial, be ac- 
quitted upon the ground of a variance between the indictment and the proof, or 
upon an exception to the form or substance of the indictment, he may be ar- 
raigned again on a new indictment, and tried and convicted for the same 
offense, notwithstanding such former acquittal. 

Cr. P. '22, § 84 ; Cr. C. '12, § 78 ; Cr. C. '02, § 51 ; G. S. 2451 ; R. S. 50. 

§ 97. No Person to Be Punished Until Legally Convicted. — No person 
shall be punished for an offense unless duly and legally convicted thereof in 
a Court having competent jurisdiction of the cause and of the person. 

Cr. P. '22, § 85 ; Cr. C. '12, § 79 ; Cr. C. '02, § 52 ; G. S. 2452 ; R. S. 51. 



CHAPTER 7 

Indictments and Trials 

98. Grand Juror not to be on Trial Jury. 112-13. Persons Duelling or Aiding in a 

99. Liability for Taxes not a Cause for * Duel. 

Challenge. 114. Depositions in Rape Trials. 

100. Number of Challenges. 115. Injury Within and Death Beyond 

101. Sufficiency of Indictment. State Limits. 

102. Defects in Indictments. 116. Injury Beyond and Death Within State 

103. Amendments. Limits. 

104. Autre Fois Acquit or Convict. 117. Parties in Different Counties. 

105. Indictments for Murder. 118. Injury in one County and Death in 

106. Count for Carrying Weapons. Another. 

107. Averment as to Written Instruments. 119. Accessories before the Fact. 

108. Prisoner's Witnesses. 120. Accessories after the Fact. 

109. Testimony of Defendant. 121. Costs where Venue Changed. 
110-11. Incriminating Evidence and Privil- 
eged Communication. 

§ 98. No Grand Juror to Be on Trial Jury. — No member of the Crand Jury 
which has found an indictment shall be put upon the jury for the trial thereof. 
Cr. P. '22, § 86 ; Cr. C. '12, § 80 ; Cr. C. '02, § ,53 ; G. S. 2639 ; R. S. 52 ; 1731, III, 279. 

§ 99. Liability of Taxes Not a Cause of Challenge. — In indictments and 
penal actions for the recovery of a sum of money, or other thing forfeited, it 
shall not be a cause of challenge to a juror that he is liable to pay taxes in any 
county, city or town, which may be benefited by such recovery. 

Cr. P. '22, § 87 ; Cr. C. '12, § 81 ; Cr. C. '02, § 54 ; G. S. 2640 ; R. S. 53 ; 1871, XIV, 693. 

§ 100. Right to Challenge. — Any person or persons who shall be arraigned 
for the crime of murder, manslaughter, burglary, arson, rape, grand larceny, 
perjury or forgery, shall be entitled to peremptory challenges not exceeding 
ten; and the State in such cases shall be entitled to peremptory challenges not 



269 Code of Criminal Procedure § 101 

exceeding five ; and any person or persons who shall be indicted for any crime 
or offense other than those enumerated above shall have the right to peremptory 
challenges not exceeding five, and the State in such cases shall be entitled to 
peremptory challenges not exceeding five. But no right to stand aside jurors 
shall be allowed to the State in any case whatsoever : Provided, That in no case 
where there shall be more than one defendant jointly tried shall more than 
twenty peremptory challenges be allowed in all to the defendants : Provided, 
further, That in misdemeanors where there is more than one defendant jointly 
tried shall more than ten peremptory challenges be allowed in all to the defend- 
ants : Provided, That in felonies where there is more than one defendant jointly 
tried,, the State shall have ten (10) challenges, and the defendants not more 
than twenty (20) challenges. 

Cr. P. '22, § 88; Cr. C. '12, § 82; Cr. C. '02, § 55 ; R. S. 54; 33 Ed. 1; 1712, II, 549; 
1841, XI, 154; 1887, XIX, 830; 1892, XXI, 94; 1927, XXXV, 180; 1928, XXXV, 1161; 
1930, XXXVI, 1268. 

§ 101. What Indictment Shall be SuflBcient. — Every indictment shall be 
deemed and judged sufficient and good in law which, in addition to allegations 
as to time and place, as now required by law, charges the crime substantially 
in the language of the common law or of the statute prohibiting the same, or 
so plainly that the nature of the offense charged may be easily understood ; and 
if the offense be a statutory offense, that the same be alleged to be contrary 
to the statute in such case made and provided. 

Cr. P. '22, § 89 ; Cr. 0. '12, § 83 ; Cr. C. '02, § 56 ; R. S. 55 ; 1887, XIX, 829. 

§ 102. How Defects in Indictments May Be Objected to. — Every objection 
to any indictment for any defect apparent on the face thereof shall be taken 
by demurrer, or on motion to quash such indictment before the jury shall be 
sworn, and not afterwards. 

Cr. P. '22, § 90 ; Cr. C. '12, § 84 ; Cr. C. '02, § 57 ; R. S. 56 ; 1887, XIX, 829. 

§ 103. Amendments of Indictments — Variance — Continuance. — If there be 
any defect in form in any indictment it shall be competent for the Court be- 
fore which the case is tried to amend the said indictment: Provided, Such 
amendment does not change the nature of the offense charged; that if on the 
trial of any case there shall appear to be any variance between the allegations 
of the indictment and the evidence offered in proof thereof, it shall be com- 
petent for the Court before which the trial shall be had to amend the said in- 
dictment according to the proof: Provided, Such amendment does not change 
the nature of the offense charged; and after such amendment the trial shall 
proceed in all respects and with the same consequences as if no variance had 
occurred, unless such amendment shall operate as a surprise to the defendant, 
in which case the defendant shall be entitled, upon demand, to a continuance of 
the cause. 

Cr. P. '22, § 91 ; Cr. C. '12, § 85 ; Cr. C. '02, § 58 ; R. S. 57 ; 1887, XIX, 829. 

§ 104. Plea of Autre Fois Acquit or Convict. — In any plea of autre fois acquit 
or autre fois convict it shall be sufficient for any defendant to state that he 
has been lawfully acquitted or convicted, as the case may be of the offense 
charged in the indictment. 

Cr. P. '22, § 92 ; Cr. C. '12, § 86 ; Cr. C. '02, § 59 ; R. 'S. 58 ; 1887, XIX, 829. 

§ 105. Indictments for Murder. — Every indictment for murder shall be 
deemed and adjudged sufficient and good in law which, in addition to setting 
forth the time and place, together with a plain statement, divested of all useless 
phraseology, of the manner in which the death of the deceased was caused, 



§ 106 Code of Criminal Procedure 270 

charges that the defendant did feloniously, willfully, and of his malice afore- 
thought kill and murder the deceased. 

Cr. P. '22, § 93; Cr. C. '12, § 87 1 Cr. C. '02, § 60; R. S. 59; 1887, XIX, 829. 

§ 106. Special Count for Carrying Weapons in Case of Murder, Manslaugh- 
ter, Assaults, Etc. — In every indictment for murder, manslaughter, assault and 
assault and battery of a high and aggravated nature, assault and assault and bat- 
tery with intent to kill, and in every case where the crime is charged to have been 
committed with a deadly weapon of the character specified in Section 160 of the 
Criminal Code, there shall be a special count in said indictment for carrying 
concealed weapons, and the jury shall be required to find a verdict on such 
special count; and all cases embraced in this Section, including the carrying 
of the weapons, shall be in the exclusive jurisdiction of the Court of General 
Sessions: Provided, That one-half the fine shall go to the free school fund of 
the county and the other half to the pension fund of said county. 

Cr. P. '22, § 94 ; Cr. C. '12, § 159 ; Cr. C. '02, § 131 ; 1897, XXII, 427. 

§ 107. Averments of Instrument of Writing in Indictment — Perjury. — In 

all cases whatsoever in which it shall be necessary to make any averment in 
any indictment as to any instrument, whether the same consists wholly or in 
part of writing, print or figures, it shall be sufficient to describe such instrument 
by any name or designations by which the same may be usually known, or by 
the purport thereof, and in such manner as to sufficiently identify such instru- 
ment without setting out any copy or fac simile of the whole or any part thereof. 

Indictments for Perjury. — In any indictment for perjury it shall not be 
necessary to set forth more than the substance of the oath and the fact concern- 
ing which the perjury is alleged to have been committed. 

Cr. P. '22, § 95; Cr. C. '12, § 88; Crim. Code, '02, §§ 61, 62; R. S. 61; 1887, XIX, 829. 

§ 108. Prisoner's Witnesses to Be Sworn, Etc. — Every person who shall be 
produced or appear as a witness on the behalf of the prisoner, upon any trial 
for treason or felony, before he be admitted to depose, or give any manner of 
evidence, shall first take an oath to depose the truth, the whole truth, and 
nothing but the truth in such manner as the witnesses for the State are by law 
obliged to do; and if convicted of any willful perjury in such evidence, shall 
suffer all the punishments, penalties, forfeitures, and disabilities which, by law, 
may be inflicted upon persons convicted of willful perjury. 

Cr. P. '22, § 96 ; Cr. C. '12, § 89 ; Crim. Code, '02, § 63 ; G. S. 2642 ; R. S. 62 ; 1 Ann. 
St. 2, c. 9 ; 1712, II, 543. 

§ 109. Defendant May Testify in Criminal Cases. — In the trial of all criminal 
cases, the defendant shall be allowed to testify (if he desires to do so, and not 
otherwise) as to the facts, and circumstances of the case. 

Cr. P. '22, § 97 ; Cr. C. '12, § 90 ; Cr. C. '02, § 64 ; G. S. 2642 ; R. S. 63 ; 1866, XIII, 378. 

§ 110. Persons Not Required to Criminate Themselves, Etc. — Privilege of 
Husband and Wife. — No person shall be required to answer any question tend- 
ing to criminate himself, nor shall husband or wife be required to disclose any 
communication made to each other during their coverture; nor shall testimony 
given under the preceding Section be afterwards used against him in any other 
criminal case, except upon an indictment for perjury, founded on that testi- 
mony. 

Cr. P. '22, § 98 ; Cr. C. '12, § 91 ; Cr. C. '02, § 65 ; G. S. 2644 ; R. S. 65 ; 1866, XIII, 378. 

§ 111. As to Testimony for Certain Offenses. — In any preliminary exami- 
nation, and on any inquiry before a grand jury, and on the trial of any indict- 



271 Code of Criminal Procedure § 112 

ment for any alleged offense under Sections 12, 13 and 14 of the Criminal Code, 
no person shall be protected from testifying as a witness for the reason that the 
testimony of such witness would tend to criminate or disgrace such witness : 
Provided, however, That no testimony so given of a character tending to crim- 
inate or disgrace such witness shall ever be used in evidence in any action, pros- 
ecution or proceeding, civil or criminal, against such witness, or against his 
or her representatives. 

When Prosecution Shall Commence. — All prosecution under Sections 12, 
13 and 14 of the Criminal Code, shall be commenced within two years after 
the commission of the offense. 

Cr. P. '22, § 99 ; Cr. C. '12, § 172 ; Or. C. '02, § 141 ; 1882, XVIII, 547. 

§ 112. Principal or Second Compellable to Give Testimony. — Upon the trial 
of all indictments for duelling, any person concerned therein, either as principal 
or second, or as counselling, aiding, and abetting in such duel, shall and may 
be compelled to give evidence against the person or persons actually indicted, 
without criminating himself or subjecting or making himself liable to any pros- 
ecution, penalty, forfeiture, or punishment, on account of his agency in such 
duel. 

Cr. P. '22, § 100 ; Cr. C. '12, § 155 ; Cr. C. '02, § 127 ; G. S. 2470 ; R. S. 127 ; 1823, VI, 208. 

§ 113. Persons Engaged in Duel May Be Used as Witness. — In every case 
where two or more persons shall be charged in any indictment for fighting a 
duel, or being concerned therein, either of such persons may be used as a wit- 
ness or witnesses in behalf of the State, by having his or their names stricken 
out of the indictment, or otherwise, at the discretion of the Attorney General 
or Solicitor, or other attorney acting for the State, conducting such prosecu- 
tion, of which an entry shall immediately be made on the minutes of the Court ; 
and in case of any such person or persons so used as a witness or witnesses in 
behalf of the State, in any prosecution for fighting a duel, or for being con- 
cerned therein, shall afterwards be indicted for the same offense, the fact of 
his or their being used as a witness or witnesses in the former prosecution for 
the same offense, shall and may be pleaded in bar to such subsequent indict- 
ment, and, on proof thereof, by competent evidence, such person or persons 
shall be thereof acquitted and discharged. 

Cr. P. '22, § 101 ; Cr. C. '12, § 156 ; Cr. C. '02, § 128 ; G. S. 2471 ; R. S. 128 ; 1823, VI, 208. 

§ 114. Testimony by Deposition in Trials for Rape or Assault with Intent 
to Ravish. — (1) Before or during the trial of a person charged with rape or 
assault with intent to ravish, when the female who is alleged to have been as- 
saulted is a witness, the Judge of the Court in which the case is to be tried may, 
in his discretion, by an order direct that the deposition of such' witness be taken 
at a time and place designated in said order within the county in which the 
trial is to be had upon such notice to the accused as the Judge may direct. 

(2) How Deposition to Be Taken.— Such deposition shall be taken by the 
Clerk of the Court of General Sessions for the county in which the case is to 
be tried, or by such other officer as the presiding Judge may name in his order, 
at the taking of which the accused shall be present, who shall have the same 
rights in regard to the examination of the witness as if she were testifying in 
open Court, and no other persons other than the attorneys for the State and 
accused shall be present unless expressly admitted by said Judge, and the ac- 
cused shall have the right to object to the admissibility of the testimony of such 



§ 115 Code of Criminal Procedure 272 

witness, either at the time of the taking of the deposition or when the same is 
offered in evidence on the trial in open Court. 
1909, XXVI, 206. 

(3) Deposition to Be Read to Jury. — Such deposition shall be read to the 
jury upon the trial, and shall be considered by them as though such testimony 
had been given orally in Court. 

(4) Judge May Direct Depositions in Rebuttal. — Said Judge may, in like 
manner, direct other depositions of such witness, in rebuttal or otherwise, which 
shall be taken and read in the manner and under the conditions herein pre- 
scribed as to the first deposition. 

(5) Custody of Deposition. — Said depositions, when taken, shall be signed 
by the witness in the presence of said clerk or other officer taking the same, 
placed in a sealed envelope, the title of the case endorsed thereon, and be re- 
tained by the said Clerk of Court till the same is opened in Court, and if taken 
by another officer he shall deliver the same to said Clerk, to be retained by him 
as herein provided. 

(6) Deposition to Be Withdrawn. — The Clerk of the Court in which said 
case is tried, in the event no appeal is taken, shall, as soon as the time for ap- 
pealing has elapsed, withdraw the deposition from the record of the case and 
destroy the same; and in case there is an appeal, as soon as the case is finally 
disposed of the said clerk shall destroy the depositions herein provided for. 

(7) Sheriff to Procure Attendance of Accused. — It shall be the duty of 
the sheriff of the county to secure the personal attendance of the accused at the 
time and place of taking such depositions; and the absence of either the attor- 
ney for the State or for the accused, after notice prescribed in the order, shall 
not prevent or delay the taking of such depositions. 

Or. P. '22, § 107; Cr. C. '12, § 92; 1909, XXVI, 206. 

§ 115. Injury Within Limits and Death Beyond Limits of This State. — 

When any person shall be struck, wounded, poisoned, or otherwise injured or 
illtreated, within the limits of this State, and shall die thereof beyond the limits 
of this State, whether on the high seas or elsewhere, the person so striking, 
wounding, poisoning, or otherwise causing death as aforesaid, shall be subject 
to indictment, trial, and punishment in the county in which said stroke, wound, 
poisoning, or other injury or illtreatment was committed, in all respects the 
same as if the death had occurred in the said county. 

Or. P. '22, § 108 ; Cr. O. '12, § 144 ; Cr. C. '02, § 116 ; G. S. 2461 ; R. S. 116 ; 1859, XXII, 
822. 

§ 116. Injury Beyond Limits and Death Within Limits of State. — ^Where 
any person within the limits of this State shall inflict an injury on any person, 
who, at the time said injury is inflicted, is beyond the limits of this State, or 
where any person beyond the limits of this State shall inflict an injury on any 
person at the time within the limits of this State, and such injury shall cause 
the death of the person injured, in either case, the person causing such death 
shall be subject to be indicted, tried, and punished; in the first case, in the 
county of this State where the person inflicting the injury was at the time when 
the same was inflicted ; and, in the second case, in the county in which it was re- 
ceived ; and the procedure and punishment shall be in all respects the same as 
if both parties were within the said county at the time said injury was inflicted, 
and the homicide had been in all respects completed in said county. 

Cr. P. '22, § 109 ; Cr. C. '12, § 145 ; Cr. C. '02, § 117 ; G. S. 2462 ; R. S. 117 ; 1859, XII, 822. 



273 Code of Criminal Procedure § 117 

§ 117. Where Parties in Different Counties. — Where an injury is inflicted 
by any person within the bounds of one county of this State on a person within 
the bounds of another county, and death shall ensue therefrom, and the party 
dies within this State, indictment, trial and punishment shall be the same as if 
the homicide had been committed altogether within the county where the party 
dies; and where the party dies without the jurisdiction of this State, indict- 
ment, trial and punishment shall be the same as if the homicide had been com- 
pleted in the county where the injury causing death was received. 

Cr. P. '22, § 110 ; Cr. C. '12, § 146 ; Cr. C. '02, § 118 ; G. S. 2463 ; R. S. 118 ; 1859, XII, 823. 

§ 118. Where Injury in One County and Death in Another. — When any 
person shall be struck, wounded, poisoned, or otherwise injured in one county, 
and dies thereof in another, any inquisition or indictment thereon found by 
jurors of either county shall be as good and effectual in law as if the stroke, 
wound, poisoning, or other injury had been committed and done in the county 
where the party shall die. And the person guilty of such striking, wounding, 
poisoning, or other injury, and every accessory thereto, either before or after 
the fact, shall be tried in the county where such indictment shall be found, and, 
if convicted, punished in the same mode, manner, and form, as if the deceased 
had suffered such striking, wounding, poisoning, or other injury and death, 
in the county where such indictment shall be found. 

Cr. P. '22, § 111 ; Cr. C. '12, § 147 ; Cr. C. '02, § 119 ; G. S. 2464 ; R. «. 119 ; 1880, XVII, 
336. 

§ 119. Accessories Before the Fact in Cases of Felony — Where to be Tried. 

— A person charged with the offense mentioned in Section 945 of the Criminal 
Code, may be indicted, tried, and punished in the same Court and county where 
the principal felon might be indicted and tried, although the offense of counsel- 
ling, hiring, or procuring the commission of such felony is committed on the 
high seas, or on land either within or without the limits of this State. 

Or. P. '22, § 112 ; Cr. C. '12, § 921 ; Cr. C. '02, § 636 ; G. S. 2612 ; R. S. 523. See 4 and 5 
P. and M., c. 4 ; 1712, II, 484. 

§ 120. Accessories After the Fact — How, When and Where Tried. — Who- 
ever becomes an accessory to a felony after the fact may be indicted, convicted 
and punished (whether the principal felon has or has not been previously con- 
victed, or is not amenable to justice) by any Court having jurisdiction to try 
the principal felon, and either in the county where such person became an ac- 
cessory, or in the county where the principal felony was committed. 

Cr. P. '22, § 113 ; Cr. C. '12, § 922 ; Cr. C. '02, § 637 ; G. S. 2613 ; R. S. 524. See I Ann. 
St. 2, c. 9; 1714, II, 543. 

§ 121. Costs in Criminal Cases Where Venue is Changfed.— Whenever a 

criminal case is transferred from one county to another for trial, all the costs 
of such trial shall be paid by the county in which the bill of indictment was 
found; such costs to be certified to such county b}^ the Clerk of the Court of 
the county in which such trial is had : Provided^ In the event a verdict of guilt 
is returned against the defendant or defendants named in the bill of indictment, 
and a fine is imposed as well as any other penalty and such fine be paid by the 
party or parties named and the Court costs, etc., having been paid by the county 
in which the bill of indictment was found, the proceeds of such fine shall be de- 
livered to the Clerk of Court of the county having original jurisdiction by the 
Clerk of Court of the county in which the verdict was obtained. 

Civ. C. '22, § 5722 ; Civ. C. '12, § 4205 ; 1902, XXIII, 1087 ; 1930, XXXVI, 1097. 



§ 122 Code of Criminal Procedure 274 

CHAPTER 8 
Appeals and New Trials 

122. Appeals from Magistrates' Courts. 127. Hearing Case on Appeal. 

123-4. Notice of Appeal. 128. New Trials. 

125. Bail. 129. Stay of Execution. 

126. Docketing Case in General Sessions. 130. No Bail in Certain Oases. 

131. Appellate Procedure. 

§ 122. Appeals From Magistrates' Courts. — Every person convicted before 
a Magistrate of any offense whatever, and sentenced, may appeal from the 
sentence to the next term of the Court of General Sessions for the county. All 
appeals from Magistrates' Courts in criminal causes shall be taken and prose- 
cuted as hereinafter prescribed. 

Cr. P. '22, § 114 ; Cr. C. '12, § 93 ; Cr. C. '02, § 66 ; G. S. 2646 ; R. 'S. 66 ; 1870, XIV, 403. 

§ 123. Time of Appeal. — The appellant shall, within five days after sen- 
tence, serve notice of appeal upon the Magistrate who tries the case, stating the 
grounds upon which the appeal is founded. 

Cr. P. '22, § 115 ; Cr. C. '12, § 94 ; Cr. C. '02, § 67 ; 1880, XVII, 493. 

§ 124. Notice to Be Filed With Clerk of Court. — Within ten days after said 
service the said Magistrate shall file in the office of the Clerk of Court the said 
notice, together with the record and statement of all the proceedings in the case, 
and the testimony in writing taken at the trial and signed by the witnesses. 

Cr. P. '22, § 116 ; Cr. C. '12, § 95 ; Cr. C. '02, § 68 ; G. S. 2648 ; R. S. 68 ; 1880, XVII, 493. 

§ 125. Defendant Entitled to Bail. — ^Upon service of the said notice the 
said Magistrate shall, on demand of the defendant, admit him to bail in such 
reasonable sum, and with good sureties, as said Magistrate may require, with 
conditions to appear at the Court appealed to, and at any subsequent term to 
which the case may be continued, if not previously surrendered, and so from, 
term to term until the final decree, sentence, or order of the Court thereon, and 
to abide such final sentence, order or decree, and not depart without leave, and 
in the meantime to keep the peace and be of good behavior. 

Cr. P. '22, § 117; Cr. C. '12, § 96; Cr. C. '02, § 69; G. S. 2649; R. S. 69; 1880, XVII, 493. 

§ 126. Clerk to Enter Case on Proper Docket. — ^The Clerk of Court, upon 
receipt of said case, shall place the same upon the proper docket of the Court of 
General Sessions for trial or other disposition at the next ensuing term of said 
Court. 

Cr. P. '22, § 118 ; Cr. C. '12, § 97 ; Cr. C. '02, § 70 ; G. S. 2650 ; R. S. 70 ; 1880, XVII, 493. 

§ 127. Appeal Heard Without Examination of Witnesses. — The said ap- 
peal shall be heard by the Court of General Sessions upon the grounds of ex- 
ceptions made, and upon the papers hereinbefore required, and without the 
examination of witnesses in said Court. And the said Court may either confirm 
the sentence appealed from, reverse or modify the same, or grant a new trial, 
as to the said Court may seem meet and conformable to law. 

Cr. P. '22, § 119 ; Cr. C. '12, § 98 ; Cr. C. '02, § 71 ; G. S. 2651 ; R. S. 71 ; 1880, XVII, 493. 

§ 128. Circuit Courts May Grant New Trials. — All the Circuit Courts of 
this State shall have power to grant new trials in cases where there has been a 
trial by jury, for reasons for which new trials have usually been granted in 
the Courts of law of the United States. 

Cr. P. '22, § 120 ; Cr. C. '12, § 99 ; Cr. C. '02, § 72 ; G. S. 2652 ; R. S. 72. 



275 Code of Criminal Procedure § 129 

§ 129. Appeal to Stay Execution of Sentence. — In criminal cases, service 
of notice of appeal in accordance with law, shall operate as a stay of the execu- 
tion of the sentence, until the appeal is finally disposed of. 

Defendant May Be Bailed, Except in Capital Cases. — Pending such ap- 
peal the defendant shall still remain in confinement, until he give bail in such 
sum and with such sureties as to the Court shall seem proper : Provided, how- 
ever, Bail shall not be allowed in case the defendant has been convicted of a capi- 
tal crime. 

Cr. P. '22, § 121 ; Cr. C. '12, § 100 ; Cr. C. '02, § 73 ; R. S. 73 ; 1884, XVIII, 787. 

§ 130. Judges Shall Not Grant Bail in Certain Cases. — It shall not be law- 
ful for any Justice of the Supreme Court, or any Circuit Judge of this State, 
pending an appeal to the Supreme Court, to grant bail to any person who shall 
have been convicted of any offense the punishment whereof is death, or imprison- 
ment for life, or imprisonment for any term exceeding ten years. 

Cr. P. '22, § 122 ; Cr. C. '12, § 101 ; Cr. C. '02, § 74 ; R. S. 75 ; 1887, XIX, 786. 

§ 131. Practice and Proceedings on Appeal. — The practice and proceed- 
ings in cases of appeal from the Courts of General Sessions shall conform to 
the practice and proceedings in cases of appeal from the Courts of Common 
Pleas. 

Cr. P. '22, § 123 ; Cr. C. '12, § 102 ; Cr. C. '02, § 75 ; R. S. 74 ; 1884, XVIII, 737. 



CHAPTER 9 

Judgment and Execution 

132. Punishment for Felony. 137. Recognizances. 

133-34. Male Convicts to work on Chain- 138. Forfeiture of Recognizances. 

gangs. 139-^0. Execution on Estate of Offender. 

135. Sentence where no Punishment Pro- 141. Remitting Forfeiture, 
vided. 142. Apportioning Fines. 

136. Suspension of Sentence. 143. Execution of Death Sentences. 

§ 132. Punishment for Felony When Not Specially Provided For. — ^Where 

no special punishment is provided for a felony, it shall, at the discretion of 

the Court, be by one or more of the following modes, to wit: Confinement in 

the Penitentiary, or in a workhouse or penal farm (when such institutions 

shall exist), for a period not less than three months nor more than ten years, 

with such imposition of hard labor and solitary confinement as may be directed. 

Cr. P. '22, § 124 ; Cr. C. '12, § 103 ; Cr. C. '02, § 76 ; G. S. 2614 ; R. !S. 76 ; 1865, XIII, 406. 
1869, XIV, 175. 

§ 133. Abie-Bodied Male Convicts to Work on County Chaingangs — Pro- 
viso and Exceptions. — In every case in which imprisonment is provided as the 
punishment, in whole or in part, for any crime, all able-bodied male convicts 
shall hereafter be sentenced to hard labor on the public works of the county in 
which convicted, if such county maintains a chaingang, without regard to the 
length of sentence, and in the alternative to imprisonment in the county jail or 
State penitentiary at hard labor: Provided, That in any case the presiding 
Judge shall have the power, by special order, to direct that any person convicted 
before him be confined in the State penitentiary if it is considered unsafe or 
unwise for such convict to be committed to county chaingang: Provided, That 
the provisions of this Section shall not apply to the counties of Greenville and 
Clarendon: Provided, That a separation of the sexes and races be at all times 
observed, except in the penitentiary and on the State farms, and Kershaw 



§ 134 Code of Criminal Procedure 276 

County : Provided, further, Should the Supervisor or commissioner of any coun- 
ty find that it is inconvenient or impracticable to work any convict committed 
to the county chaingang, he may turn said convict over to the penitentiary au- 
thorities : Provided, further. That the Highway Commissioners of Berkeley 
County may, at their discretion, hire or farm out the convicts of Berkeley Coun- 
ty by, through and with the consent of the authorities of the State penitentiary. 
Cr. P. '22, § 125 ; Cr. C. '12, § 104 ; 1911, XXVII, 169 ; 1912, XXVII, 553 ; 1914, XXVIII, 
f515; 1917, XXX, 265. 

§ 134. Convicts May Be Sentenced to County Chaingangs. — All the Courts 
of this State and municipal authorities which, under existing laws, have power 
to sentence convicts to confinement in prison with hard labor, shall sentence all 
able-bodied male convicts to hard labor upon the public works of the county 
in which said person shall have been convicted, and in the alternative to im- 
prisonment in the County Jail or State penitentiary at hard labor: Provided, 
That municipal authorities may sentence municipal convicts to work upon the 
streets and other public works of the municipality in which they have been 
convicted, and such convicts when so sentenced shall work under the exclusive 
direction and control of the municipal authority imposing sentence : Provided, 
That no convict whose sentence shall be for a period longer than five years shall 
be so sentenced. 

Cr. P. '22, § 126 ; Cr. C. '12, § 943 ; Cr. C. '02, § 657 ; R. S. 544 ; 1892, XXI, 22 ; 1899, 
XXIII, 13. 

§ 135. Sentence Where No Punishment is Provided. — In cases of legal con- 
viction, where no punishment is provided by statute, the Court shall award 
such sentence as is conformable to the common usage and practice in this State, 
according to the nature of the offense, and not repugnant to the Constitution. 

Cr. P. '22, § 127; Cr. C. '12, § 105; Cr. C. '02, § 78; G. S. 2653; R. S. 78. (See, 1866, 
XIII, 406, §§ 9, 10.) 

§ 136. Circuit Judges Empowered to Suspend Sentence in Certain Cases. 

— The Circuit Judges of this State shall have the power and authority, in their 
discretion, to suspend sentences imposed by them, upon such terms and upon 
such conditions as in their judgment may be fit and proper: Provided, Said 
power and authority shall not extend to cases of felony. 
Cr. P. '22, § 128 ; 1912, XXVII, 773. 

§ 137. Recognizances to Be in Name of State. — In all recognizances by any 

person for keeping the peace, or good behavior, or for appearing as a party, 

surety of witness at any Court of criminal jurisdiction within the State, the 

sum or sums of money in which any such person shall be bound shall be made 

payable to the State ; and every such recognizance shall be good and effectual in 

law, provided it be signed by every party thereto in the presence of a Judge, 

Clerk of a Court of Common Pleas, Magistrate or Notary Public, who shall sign 

the same as a witness. 

Cr. p. '22, § 129 ; Cr. C. '12, § 111 ; Cr. C. '02, § 84 ; G. S. 2659 ; R. S. 84 ; 1787, V, 13 ; 
1883, XVIII, 450. 

§ 138. Proceedings in Case of Forfeiture of Recognizances. — Whenever 
such recognizance shall become forfeited by noncompliance with the condition 
thereof, the Attorney General, or Solicitor, or other person acting for him, shall, 
without delay, issue a notice to summon every party bound in such forfeited 
recognizance to be and appear at the next ensuing Court of Sessions, to show 
cause, if any he has, why judgment should not be confirmed against him; and 
if any person so bound fail to appear, or appearing, shall not give such reason 



277 Code of Criminal Procedure § 139 

for not performing the condition of such recognizance as the Court shall deem 
sufficient, then the judgment on such recognizance shall be confirmed. 
Cr. P. '22, § 130 ; Cr. C. '12, § 112 ; Cr. C. '02, § 85 ; G. S. 2660 ; R. S. 85 ; 1787, V, 13. 

§ 139. Execution to Issue for Sale of Estate of Offender, Etc. — In every 
case where any such recognizance shall be adjudged so forfeited, or where any 
fine shall be imposed by or recovered for the use of the State, in any Court or 
before a Magistrate, if the party incurring such fine or forfeiture shall fail to 
pay down the same, with the costs of prosecution, then a writ, in the nature of 
an execution, shall issue, by virtue of which the sheriff, or his deputy, shall sell 
(in the same manner as property is sold under execution in civil cases) so much 
of such offender 's estate, real or personal, as may be necessary to satisfy the fine 
or forfeiture, and also the costs of prosecution, and also the reasonable charges 
of taking, keeping, and selling such property, returning the overplus, if any, 
to the offender, together with a bill of the fine or forfeiture, with costs and 
charges, if he requires it. 

Cr. P. '22, § 131 ; Cr. C. '12, § 113 ; Cr. C. '02, § 86 ; G. S. 2661 ; R. S. 86 ; 1787, V, 13. 

§ 140. If Amount Not Made, Offender May Be Committed to Jail, Etc. — 

If the sheriff, or his deputy, return on oath that such offender refused to pay, 
or has not any property, or not sufficient whereon to levy, then a writ of capias 
ad satisfaciendum shall issue, whereby he shall be committed to the common 
jail, until the forfeiture, costs, and charges shall be satisfied — entitled, however, 
to the privilege of insolvent debtors. 

Cr. P. '22, § 132 ; Cr. C. '12, § 114 ; Cr. C. '02, § 87 ; G. S. 2662 ; R. S. 87 ; 1787, V, 13. 

§ 141. Court May Remit Forfeiture in Certain Cases. — If any person shall 
forfeit a recognizance from ignorance or unavoidable impediment, and not from 
willful default, the Court of Sessions may, on affidavit stating the excuse or 
cause thereof, remit the whole or any part of the forfeiture, as may be deemed 
reasonable. 

Cr. P. '22, § 133 ; Cr. C. '12, § 115 ; Cr. C. '02, § 88 ; G. S. 2663 ; R. S. 89 ; 1787, V, 13. 

§ 142. Fines in Alternative Apportioned when Part of Sentence Served. — 

In all cases in this State where a sentence has been imposed by any Judge, 
Magistrate, Mayor or Intendant of any city or town in the alternative (by fine 
or imprisonment), and the person upon whom said sentence has been imposed 
shall enter upon the service of said sentence, and thereafter the said person, 
or any one in his or her behalf, shall desire or offer to pay the fine imposed by 
said sentence, the Clerk of the Court in the county in which the said sentence was 
imposed, or the Judge, Magistrate, Mayor or Intendant who imposed the said 
sentence, shall apportion the fine imposed therein, so that the said person, or any 
one in his or her behalf, shall be allowed to pay such part of said fine as shall 
be in proportion to the balance of the time to be served under the said sentence. 
That, upon the payment of said proportionate part of said fine, the said Clerk, 
Judge, Magistrate, Mayor or Intendant shall release and discharge the person 
in behalf of whom the said fine is so paid, from further custody. 
1922, XXXII, 767. 

§ 143. Execution of Death Sentence upon Dismissal of Appeal — Notice to 
Superintendent of Penitentiary. — Hereafter, in all criminal cases where the 
sentence of death is imposed, and which are appealed to the Supreme Court, 
when the judgment below has been affirmed, or the appeal dismissed or aban- 
doned, it shall be the duty of the Clerk of the Supreme Court, when the re- 
mittitur is sent down, or the appeal is dismissed, or abandoned, to notify the su- 



§ 160 Code of Criminal Procedure 278 

perintendent of the State penitentiary or his duly appointed officer in charge 
thereof, of the final disposition of such appeal, and, on the fourth Friday after 
the receipt of the said notice, the sentence appealed from shall be duly carried 
out as provided by law in such cases, unless stayed by order of the Supreme 
Court or respite or commutation of the Governor. 

Form op Notice. — Two copies of the said notice shall be served or sent by 
registered mail to the Superintendent of the State penitentiary or his duly ap- 
pointed officer in charge thereof, which notice shall read substantially as fol- 
lows : "This is to notify you that the sentence of death imposed in the case of 

State vs , from which an appeal has been ta